DAVID L. TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant is estopped from challenging the illegality of a sentence after violating probation during the period that would have been legal.
David L. Taylor was sentenced to ten years probation for driving under the influence resulting in serious bodily injury. He violated probation by poss…
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HARRIS, Judge.
David L. Taylor pled nolo to the offense of driving under the influence resulting in serious bodily injury. Substantial restitution was required so, without objection from Taylor and with the approval of the State, Taylor was sentenced to ten years probation in lieu of prison. Within a few months of his sentence (which he did not appeal), Taylor violated the terms of his probation by, among other violations, possessing marijuana. He was found guilty of violating probation and sentenced to 38 months in prison. He now contends that it was improper to violate his probation because his original sentence' was “illegal” where the initial conviction of a third degree felony did not authorize a term of ten years probation. He urges that since he cannot violate an illegal sentence, his latest conviction must be set aside. The trial court disagreed and we affirm.
We recognize that Taylor’s original sentence was illegal in that it exceeded the maximum statutory authority. However, since he violated probation during the first five years, a sentence that would have been legal in any event, we find that he is now estopped to assert the illegality of the sentence after he has knowingly taken advantage of its benefits. See Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995); Smith v. State, 630 So. 2d 641 (Fla. 5th DCA 1994); Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992). We are not here facing a violation which is alleged to have occurred during that portion of the sentence which exceeded the statutory maximum.
We acknowledge conflict with Jackson v. State, 654 So. 2d 234 (Fla. 4th DCA 1995).
AFFIRMED.
PETERSON, C.J., and GOSHORN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Collins v. State, 697 So. 2d 1305 (Fla. 4th DCA 1997)…ant’s total term of probation was in excess of the statutory maximum, he was serving the legal portion of the term when the violations occurred and the violations were unrelated to the illegality. We note that the fifth district in Taylor v. State, 690 So. 2d 686 (Fla. 5th DCA), review granted, No. 90,439, 22 Fla. L. Weekly No. 26, p. ii, — So. 2d - (Fla. June 27, 1997), acknowledged conflict with Jackson. In Taylor, the defendant, like defendant here, violated his probation during the legal portion of the s…1 / 2
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Taylor v. State, 702 So. 2d 487 (Fla. 1997)…GRIMES, Senior Justice. We review Taylor v. State, 690 So. 2d 686 (Fla. 5th DCA 1997), based on conflict with Cecil v. State, 614 So. 2d 603 (Fla. 1st DCA 1993). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. Taylor was convicted of driving under the influence resulting in seri…
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Landry v. State, 61 So. 3d 1160 (Fla. 5th DCA 2011)…ally imposed. § 948.06(2)(b), Fla. Stat. (2009); see Franklin v. State, 545 So. 2d 851 (1989). Further, Appellant is es-topped from asserting the illegality of the sentence after he has knowingly taken advantage of its benefits. See Taylor v. State, 690 So. 2d 686, 686 (Fla. 5th DCA 1997). The trial court imposed a legal sentence following Appellant’s violation of probation and he is entitled to no relief regarding his original sentence. Accordingly, we affirm. AFFIRMED. MONACO, C.J., GRIFFIN and COHEN, JJ…
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
- Gaskins v. State, 607 So. 2d 475 (Fla. 1st DCA 1992)
- Warrington v. State, 660 So. 2d 385 (Fla. 5th DCA 1995)
- Solomon Jackson v. State, 654 So. 2d 234 (Fla. 4th DCA 1995)
- Venita Ann Smith v. State, 630 So. 2d 641 (Fla. 5th DCA 1994)
- Adams v. State, 630 So. 2d 641 (Fla. 3d DCA 1994)