ROBERT ROBINSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Robert Robinson appealed his robbery conviction and five-year prison sentence followed by ten years of probation. The Florida Third District Court of Appeal affirmed the conviction and prison sentence but vacated the probation portion, holding that Florida law does not permit a sentence to state prison to be followed by probation.
A sentence to state prison followed by probation is not authorized by Florida statutes. The trial court may impose probation only under limited circumstances specified in Florida Statutes Chapter 948, which do not include probation following a state prison sentence. The five-year state prison sentence was lawful and affirmed, but the ten-year probation portion was illegal and vacated.
[1] A sentence of imprisonment in state prison cannot be followed by a period of probation.
[2] Probation is a matter of substantive law, and courts may only grant probation where statutory authority exists.
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Join FLexlaw to unlock all legal intelligence“The statute does not authorize a sentence to the state prison to be followed by a period of probation.”
Establishes the core holding that state prison sentences cannot be followed by probation under Florida law
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Join FLexlaw to unlock all legal intelligenceRobinson was found guilty of robbery and sentenced to five years in state prison followed by ten years of probation. Robinson raised three appellate i…
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This appeal is from a judgment finding the appellant guilty of robbery and a sentence to the state prison for five years to be followed by ten years “probation.” The appellant has presented three points: (1) It was error to deny appellant’s objections to the testimony of one of the police officers; (2) It was error to deny appellant’s motion to exclude the identification testimony because the identification was tainted by suggestive pre-trial procedures; (3) The sentence is illegal.
The first two points are without merit on this record and do not warrant further *391discussion. Appellant’s point directed to the legality of the sentence is well taken and requires us to vacate the sentence in part.
Florida Statutes, Chap. 948, F.S. A., provides that a sentence may include a period of probation under expressed circumstances. The Florida Rules of Criminal Procedure 3.790, 33 F.S.A., augments but does not supersede the statute.1 The statute 948.01 provides in part as follows:
“(3) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the supervision and control of the commission for the duration of such probation. And the said commission shall thereupon and thereafter, during the continuance of such probation, have the supervision and control of the defendant.
“(4) Whenever punishment by imprisonment in the county jail is prescribed, the court, in its discretion, may at the time of sentencing direct the defendant to be placed upon probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.”
The statute does not authorize a sentence to the state prison to be followed by a period of probation. Florida Rules of Criminal Procedure 3.790(b) also states:
“(b) Suspension of the Pronouncement and Imposition of Sentence; Probation. Pronouncement and imposition of sentence of imprisonment shall not be made on a defendant who is to be placed on probation regardless of whether the defendant has or has not been adjudicated guilty, except that if a sentence of imprisonment in the county jail is imposed at the time of sentencing the court may direct that defendant be placed on probation on completion of any specified period of the sentence.”
This fact is in keeping with the nature and purpose of probation which is to rehabilitate the convicted person without exposure to the sometimes unfortunate results of prison confinement. Roy v. State, Fla. App.1967, 207 So.2d 52.
The sentence to five years in the state prison is a lawful sentence. As such it is not subject to review in this court. That portion of the sentence which provides for probation after the prison term is illegal and must be vacated. Therefore the judgment is affirmed; the sentence to five years in the state prison is affirmed and that portion of the sentence providing for ten years probation after the term in prison is vacated.
Judgment affirmed; sentence amended and as amended is affirmed.
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Jones v. State, 296 So. 2d 519 (Fla. 3d DCA 1974)…robation.” Consistent with the provisions of the statute above referred to it has been held that a court in sentencing a defendant to imprisonment in the state penitentiary cannot add thereto a period of probation. Robinson v. State, Fla.App. 1972, 256 So. 2d 390. Subparagraph (4) of § 948.01 furnishes an exception, where punishment by imprisonment in the county jail is prescribed. In that instance it is provided that a defendant who is being sentenced may be placed on probation “upon completion of any speci…
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Harrelson v. State, 259 So. 2d 526 (Fla. 1st DCA 1972)…ted. The law is well settled that the matter of a continuance lies within the discretion of the trial judge, and his ruling denying a continuance will not be disturbed unless it has been shown that the court abused its discretion. Robinson v. State, 256 So. 2d 390 (Fla.App.1972). No abuse of discretion in this regard is reflected on this record. Appellant’s reliance on Oliver v. State, 250 So. 2d 888 (Fla.1971), is misplaced. In Oliver, the text of a confession given by the defendant was published in the loca…
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Dancy v. State, 259 So. 2d 208 (Fla. 3d DCA 1972)…wn that there was a violation of any procedural rule.1 The appellant argues that the sentence of eighteen months’ probation after completion of a term of imprisonment in the state penitentiary was illegal. We agree. Robinson v. State, Fla.App.1972, 256 So. 2d 390. (1972). See also: Roy v. State, Fla.App.1968, 207 So. 2d 52, 56. Therefore, we reverse and remand with directions that a new trial be granted as to the charge of carrying a concealed firearm. Reversed and remanded with directions that a new trial…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- ROY v. State, 207 So. 2d 52 (Fla. 2d DCA 1967)