WALLACE JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Wallace Johnson appealed his seventeen-year sentence imposed upon revocation of probation, arguing that as a youthful offender he was subject to a maximum six-year sentence. The State initially confessed error, but the court reversed course after the State correctly identified that amended Florida law allows sentences exceeding six years for youthful offenders when probation is revoked due to substantive offenses rather than technical violations.
A youthful offender can be sentenced in excess of six years upon revocation of probation if the violation involves substantive offenses rather than merely technical violations. Johnson's seventeen-year sentence is affirmed because his probation revocation was based on substantive offenses, not technical violations alone.
[1] A prior confession of error may be withdrawn and a mandate recalled if the confession was based on a misinterpretation of statutory amendments that alter the applicable s…
[2] Under the amended section 958.14, Florida Statutes, a youthful offender whose probation is revoked for substantive violations may be sentenced to a term exceeding six yea…
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Join FLexlaw to unlock all legal intelligence“Under amended section 958.14, a youthful offender can be sentenced in excess of six years after revocation of probation if the violation was substantive rather than technical.”
Establishes the controlling legal standard under amended Florida law that distinguishes between substantive and technical probation violations for youthful offenders.
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Join FLexlaw to unlock all legal intelligenceJohnson was originally sentenced as a youthful offender in 1993 under the amended version of section 958.14, Florida Statutes. His probation was revok…
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PER CURIAM.
The appellant filed a direct appeal of his seventeen year sentence imposed upon revocation of his probation. He contended that because he was originally sentenced as a youthful offender, he was subject to a maximum sentence of six years, with credit for time served. The State filed a confession of error based upon the case of State v. Arnette, 604 So. 2d 482 (Fla.1992). This Court recognized the confession and entered an opinion which reversed the sentence and ordered that the matter be returned to the trial court for appropriate resentencing pursuant to section 958.14, Florida Statutes (1993).
Subsequent to the issuance of the mandate, the state filed a motion to recall mandate and for rehearing, asserting that its previous confession of error was itself erroneous. It had failed to realize that the holding of Amette was based upon the pre-1990 version of section 958.14.- Under amended section 958.14, a youthful offender can be sentenced in excess of six years after revocation of probation if the violation was substantive rather than technical. See § 958.14, Fla. Stat. (1995); Dunbar v. State, 664 So. 2d 1093 (Fla. 2d DCA 1995); Darden v. State, 641 So. 2d 431 (Fla. 2d DCA 1994); Reeves v. State, 605 So. 2d 562 (Fla. 2d DCA 1992).
We recalled the mandate and accepted the motion for rehearing as timely filed and received no response from the defendant. After a careful review of the record, we find the state’s contentions to be correct and therefore recall our prior opinion.
The defendant was originally sentenced in 1993, when the amended version of section 958.14 was in effect. His probation was revoked in 1995 based upon new substantive offenses of grand theft of an automobile, burglary, possession of burglary tools and resisting arrest without violence, in addition to several technical violations of probation. Since there is no question that the defendant was found to have committed several substantive offenses, he is not subject to the six year cap on resentencing upon revocation of probation. The evidence of the subsequent substantive violations is amply supported by the record in this case so there is no need to remand for resentencing. See Collins v. State, 446 So. 2d 268 (Fla. 2d DCA 1984); Terry v. State, 406 So. 2d 121 (Fla. 2d DCA 1981). Therefore, the defendant’s seventeen year sentence is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Arnette, 604 So. 2d 482 (Fla. 1992)
- Isaiah Dunbar v. State, 664 So. 2d 1093 (Fla. 2d DCA 1995)
- Reeves v. State, 605 So. 2d 562 (Fla. 2d DCA 1992)
- Collins v. State, 446 So. 2d 268 (Fla. 2d DCA 1984)
- Roth v. State, 406 So. 2d 121 (Fla. 2d DCA 1981)
- Terry v. State, 406 So. 2d 121 (Fla. 2d DCA 1981)
- Darden v. State, 641 So. 2d 431 (Fla. 2d DCA 1994)