NORMAN CONREY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Norman Conrey appeals a trial court order that extended his probation for an additional two years, resulting in a total probation term exceeding five years. The court vacated the order, holding that a trial court lacks authority to impose probation exceeding the maximum statutory sentence for the underlying offense, even pursuant to a plea agreement.
A trial court is without authority to extend probation beyond the maximum statutory sentence, and any such extension is illegal and void. Because the statutory maximum sentence for a third-degree felony is five years, Conrey's total probation term cannot exceed five years, and the court's order extending his probation was illegal.
[1] A trial court cannot extend a term of probation beyond the period of the maximum permissible sentence.
[2] The statutory maximum probationary term for a third-degree felony is five years.
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Join FLexlaw to unlock all legal intelligence“When imposing a term of probation, a court is not authorized to extend the term of probation beyond the period of maximum sentence.”
Establishes the fundamental legal principle that probation terms cannot exceed the statutory maximum sentence for the underlying offense.
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Join FLexlaw to unlock all legal intelligenceOn June 4, 1987, Conrey was adjudicated guilty of two counts of carrying a concealed firearm (third-degree felonies) and sentenced to 364 days in jail…
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DIAMANTIS, Judge.
Norman Conrey appeals the trial court’s order which reinstated Conrey’s probation for an additional two-year period pursuant to a plea agreement. Conrey contends that the trial court’s order is illegal because the order extends his probation for a third-degree felony beyond the maximum five-year probationary period allowed by law.1 We agree and, thus, vacate the order extending probation and remand for further proceedings.2
On June 4, 1987, the trial court adjudicated Conrey guilty on two counts of carrying a concealed firearm, a third-degree felony, in violation of section 790.01(2), Florida Statutes (1986). The trial court sentenced Conrey to a term of 364 days imprisonment in the county jail, with 236 days credit for time served, on count one, and to a consecutive term of five years probation on count two.
On May 6, 1992, Conrey was charged with violating his probation. On August 14, 1992, Conrey, pursuant to a plea agreement, pled guilty to violating his probation in exchange for being placed on probation for an additional two-year term. On September 29, 1992, the court entered a written order, nunc pro tunc August 14, 1992, which revoked Con-rey’s probation and reinstated him to probation pursuant to the plea agreement.
When imposing a term of probation, a court is not authorized to extend the term of probation beyond the period of maximum sentence. Kolovrat v. State, 574 So. 2d 294, 297 (Fla. 5th DCA 1991).
See also Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993); Ogden v. State, 605 So. 2d 155, 158 (Fla. 5th DCA 1992).
Because a court is powerless to extend a period of probation beyond the maximum permissible sentence, any such extension is illegal. Blackburn v. State, 468 So. 2d 517, 518 (Fla. 1st DCA 1985); Watts v. State, 328 So. 2d 223, 223 (Fla. 2d DCA 1976).
The statutory maximum sentence for a third degree felony is five years; thus, the maximum probationary term that Conrey can receive is five years. Kolovrat, 574 So. 2d at 297. Here, Conrey has received a total term of probation which exceeds five yeai’S. A trial court cannot impose an illegal sentence pursuant to a plea bargain. Williams v. State, 500 So. 2d 501, 503 (Fla.1986).
See also Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993).
Accordingly, we vacate the trial court’s order placing Conrey on probation and remand this cause to the trial court to enter an order placing Conrey on probation for a term which shall not result in Conrey being on probation for more than a total of five years or, alternatively, the state may request the trial court to vacate the plea and set the probation violation matter for hearing. If a hearing is held and Conrey is found guilty of violating his probation, the trial court shall have the option of sentencing pursuant to Williams v. State, 594 So. 2d 273 (Fla.1992) (sentence may be bumped up one cell for each violation of probation).
Also, in the event Conrey is sentenced to incarceration, he is entitled to be credited for time served as mandated by Tripp v. State, 622 So. 2d 941 (Fla.1993) (credit for time served on first offense must be awarded on sentence imposed after revocation of probation on second offense).
ORDER VACATED; REMANDED.
GOSHORN and GRIFFIN, JJ., concur. . A defendant may appeal from an illegal sentence even when he has entered a guilty plea. Smith v. State, 358 So. 2d 1164, 1165 (Fla. 2d DCA 1978).
. We have reviewed and rejected Conrey’s double jeopardy contention because we conclude that this issue was voluntarily waived by entry of the guilty plea. See Zaetler v. State, 616 So. 2d 461 (Fla. 3d DCA 1993); Novation v. State, 610 So. 2d 726 (Fla. 3d DCA 1992).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Straughan v. State, 636 So. 2d 845 (Fla. 5th DCA 1994)…the statutory maximum each time probation or community control is revoked. We concluded that the legislature could not have intended such a result. Id. at 158. See also Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993) (en banc); Conrey v. State, 624 So. 2d 793 (Fla. 5th DCA 1993); Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993); Raulerson v. State, 620 So. 2d 265 (Fla. 5th DCA 1993); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991); Servis v. State, 588 So. 2d 290 (Fla. 2d DCA 1991). Contra Quincu…
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Stacey v. State, 660 So. 2d 1083 (Fla. 5th DCA 1995)…illegal sentence even if the sentence is pursuant to a valid plea agreement); Stephens v. State, 627 So. 2d 543 (Fla. 2d DCA 1993) (defendant did not waive legality of his sentences even though he agreed to them in a plea bargain); Conrey v. State, 624 So. 2d 793 (Fla. 5th DCA 1993) (trial court cannot impose an illegal sentence pursuant to a plea bargain); Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993) (fact that defendant agreed to accept an habitual violent felony offender sentence does not preclud…
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Whitehead v. State, 685 So. 2d 894 (Fla. 5th DCA 1996)…not have exceeded 90 .days. Nor could Whitehead have agreed to an illegal sentence, one that exceeds the maximum statutory term. Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994); Dyer v. State, 629 So. 2d 285 (Fla. 5th DCA 1993); Conrey v. State, 624 So. 2d 793 (Fla. 5th DCA 1993). Accordingly, we vacate the sentence and remand for resentencing. Sentence VACATED; REMANDED for resentencing. COBB and THOMPSON, JJ., concur. . § 316.192, Fla. Stat. (1995).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- Williams v. State, 500 So. 2d 501 (Fla. 1986)
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)
- Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993)
- Watkins v. State, 622 So. 2d 1148 (Fla. 1st DCA 1993)
- Smith v. State, 358 So. 2d 1164 (Fla. 2d DCA 1978)