STATE OF FLORIDA, APPELLANT,
v.
WARDELL ROBERT WILLIAMS, APPELLEE
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The state cannot appeal conditions of probation, only sentences, and therefore the appeal must be dismissed.
[1] Probation is concerned only with the suspension of the imposition or pronouncement of sentence, not with the pronouncement of sentence and suspension of its execution.
[2] A court may hear and determine the question of probation either with or without an adjudication of guilt.
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Join FLexlaw to unlock all legal intelligenceA defendant pleaded nolo contendere to manslaughter and was placed on probation with unusual conditions: a fine and intermittent jail time. The state …
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Appellee plead nolo contendere to a charge of manslaughter. The trial judge placed him on twenty years probation. The conditions of such probation were that he pay to the fine and forfeiture fund of the county three thousand dollars within three years and report each year to spend sixty days in jail, beginning November 1st of each year. The state has appealed pursuant to the authority of Fla.Stat. § 924.-07(5), F.S.A., and assigned the conditions of probation as error.
*70In order to evaluate properly the unorthodox conditions attached to the order of probation by the trial judge, a distinction must be made between suspension of the imposition of sentence (or suspension of the pronouncement of sentence) by the court and pronouncement of sentence and suspension of its execution. The history of this delineation has been throughly examined in an article by Professor Clark1 and in case of Bateh v. State, Fla.App.1958, 101 So.2d 869, 870-872. These sources make it quite clear and probation is concerned only with suspension of the imposition or pronouncement of sentence. Moreover, in order that one placed on probation will not necessarily be deprived of certain civil liberties that are withdrawn following conviction of a felony, Fla.Stat. § 948.01(1), F.S.A. allows a court to hear and determine the question of probation either with or without an adjudication of the guilt of the defendant. See also CrPR 1.790, 33 F.S.A. Thus there is a clear distinction between a sentence on the one hand, which must be preceded by an adjudication of guilt, and conditions of probation on the other hand, which can be imposed independently of an adjudication of guilt and imposition or pronouncement of sentence.
Appellant urges that this “sentence” be reversed on the authority of Ex parte Bosso, Fla.1949, 41 So.2d 322. We disagree. First, we are not concerned in this appeal with a sentence but with conditions of probation. Since Fla.Stat. § 782.-07, F.S.A. states that one guilty of manslaughter
“[Sjhall be punished by imprisonment in the state prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars,” (emphasis added),
one would hardly expect the state to be the party appealing an order sentencing one pleading nolo contendere to manslaughter to payment of a fine and imprisonment. Secondly, Bosso is not applicable to the unique facts presented in this appeal. That case held, and quite correctly, that when a crime is punishable by fine or imprisonment but not both, a court cannot sentence one convicted of that crime to payment of the fine and additionally place him on probation. The court reasoned that if the person so convicted were to violate the conditions of parole, the court would be powerless to punish him further, for to do so would be to inflict two punishments for the same offense. More generally, the court expressed disapproval of such “piecemeal punishments.” However, in the instant case, sentence was neither pronounced nor imposed on the appellee, for the fine and intermittent incarceration, though highly unusual, were both imposed as conditions of probation. Fla.Stat. § 948.011, F.S.A. is inapplicable for the same reason, as it is concerned only with combining a sentence of a fine with probation where a sentence of both a fine and imprisonment may be imposed. Finally, since the instant case is not concerned with a combination of sentencing and probation for the same offense, the court’s disapproval in Bosso of “piecemeal punishments” is not applicable.
As we have stated before, payment of a fine and intermittent imprisonment are usually not thought of as conditions of probation. However, Fla.Stat. § 948.03(2), F.S.A. is sufficiently broad to allow imposition of such conditions. Also, cf., United States ex rel. Spellman v. Murphy, 7th Cir.1954, 217 F.2d 247; State v. Bassett, 1963, 86 Idaho 277, 385 P.2d 246; State v. Brown, 1960, 253 N.C. 195, 116 S.E.2d 349; Note, Judicial Review of Probation Conditions, 1967 Colo.L.Rev. 181 at 184 and 120-23.
Since it is apparent for the foregoing reasons that the state is not appealing from a sentence the appeal must be dismissed. *71Fla.Stat. § 924.07(5), F.S.A. provides for appeal by the state from sentences, not conditions of probation. It is also clear from the foregoing that the conditions of probation imposed by the trial court do not constitute a deviation from the essential requirements of law that would justify treating the appeal as a petition for certio-rari.
Appeal dismissed.
MANN, J., concurs.
HOBSON, C. J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…e jail without permission, which resulted in the trial court’s revoking his probation and sentencing him to three years in the state prison pursuant to Section 948.06, Florida Statutes. The Second District affirmed. Previously, in State v. Williams, 237 So. 2d 69 (Fla.App.2d 1970), the Second District had held that Section 948.03, Florida Statutes, was sufficiently broad to allow a condition which required the defendant to spend sixty days in jail each year of a twenty-year probation. That court cited as add…
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Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)…was denied show that certiorari jurisdiction existed, in that the denials were based on the lack of proper criteria for certiorari and not on the lack of certiorari power. E.g., Basnet v. City of Jacksonville, 18 Fla. 523 (1882); State v. Williams, 237 So. 2d 69 (Fla. 2d DCA 1970); Marlowe v. Ferreira, 211 So. 2d 228 (Fla. 2d DCA 1968); Gulf Cities Gas Corp. v. Cihak, 201 So. 2d 250 (Fla. 2d DCA 1967). The majority opinion characterizes this Court’s decision in State v. G.P. as having held “that no right o…
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Peter v. VAN Tassel, 486 So. 2d 528 (Fla. 1986)…So. 2d 72 (Fla. 1st DCA 1978), that jail time as a condition of probation was not a “sentencing” which requires credit for prior time served (section 921.161(1), Florida Statutes), and the Second District Court of Appeal ruled in State v. Williams, 237 So. 2d 69 (Fla. 2d DCA 1970), that a similar penalty disposition was not a sentence to the extent of allowing the state to appeal. In State v. Jones, 327 So. 2d 18, 24 (Fla.1976), we stated: “We hold that the trial courts of this state have the general autho…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mussa C. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958)
- Sonz v. Rose-Marie, 41 So.2d 322 (Fla. 1949)
- United States ex rel. Francis Spellman, Jr. v. Murphy, 217 F.2d 247 (7th Cir. 1954)