HORACE CLEVELAND, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Horace Cleveland was convicted of unlawful possession of blank, stolen, or counterfeit driver's licenses and sentenced to six months in jail plus one year probation. The Florida appellate court affirmed the conviction but modified the sentence by striking the probation provision, finding it unauthorized under Florida law.
The court affirmed the conviction, holding that the search was lawful and the seizure of the driver's licenses was admissible evidence. However, the court held that the probation period following the jail sentence was unauthorized and improper, and modified the sentence to eliminate the probation provision.
[1] Evidence discovered during a lawful search, even if not specifically listed in the search warrant, is admissible if found during a continuous and lawful search.
[2] An illegal sentence, or an illegal part of a sentence, is reviewable on appeal in the interests of justice, even if not argued in the appellant's brief.
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Join FLexlaw to unlock all legal intelligence“We find the search in the case sub judice was lawful and continuous and the fruits thereof [i. e. the blank driver's licenses] were admissible.”
Establishes that the seizure of the driver's licenses was proper despite the warrant's limitation to gambling paraphernalia.
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Join FLexlaw to unlock all legal intelligenceCleveland was tried non-jury and found guilty of unlawful possession of blank driver's licenses in violation of Fla.Stat. § 322.212(1). The police off…
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PER CURIAM.
Defendant-appellant was informed against for unlawful possession of blank, stolen, or counterfeit driver’s licenses [in violation of Fla.Stat. § 322.212(1), F.S.A.], was tried non-jury, found guilty and sentenced to six months in the Dade County Jail, plus a one (1) year period of probation thereafter. On appeal, defendant first contends that the trial court erred in denying his motion to suppress (the blank driver’s licenses) on the grounds that the search warrant authorized the seizure of gambling paraphernalia only. We disagree.
The police officers, armed with a valid search warrant, were lawfully on the premises. We find the search in the case sub judice was lawful and continuous and the fruits thereof [i. e. the blank driver’s licenses] were admissible. See Partin v. State, Fla.App. 1973, 277 So. 2d 847.
We have considered also appellant’s second point on appeal and find that to be lacking in merit.
Accordingly, we affirm the judgment of conviction, but we find error in the sentence in the respect set out below.
No contention of invalidity of the sentence was argued in the brief. However, we regard an illegal sentence, or illegal part of a sentence, where it appears on appeal to be a matter within the scope of appellate review pursuant to FAR 6.16, 32 F.S.A., which provides in part: “The court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record, including instructions to the jury.”
Here the portion of the sentence which made provision for probation for a one (1) year period, to follow after the serving of the six months in the county jail, was unauthorized and improper for the reasons set out in Williams v. State, Fla.App. 1973, 280 So. 2d 518. In Williams it was pointed out that the authority granted by Fla.Stat. § 948.01(4), F.S.A. to add a period of probation to be combined with a jail sentence was to provide for the defendant to be placed on probation “upon completion of any specified period of such sentence.” Thus, for example, where a court in sentencing a defendant to imprisonment for a designated period in the county jail provides that after serving a stated portion of that designated period, defendant shall be on probation for some period, the penalty for a violation of probation would call for return of the de-fendant to the county jail for the unserved balance of the jail sentence, or such part thereof as the court should determine. The statute did not make provision for. adding a period of probation to follow service of the term [in the instant case six months] for which the defendant was committed to the county jail.
The judgment is affirmed. The sentence is modified to eliminate therefrom the provision for probation.
It is so ordered.
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Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)…for another day. . Greene v. Massey, 384 So. 2d 24 (Fla.1980). . See, e. g., Wright v. State, 348 So. 2d 26 (Fla. 1st DCA 1977); In re Tierney, 328 So. 2d 40 (Fla. 4th DCA 1976); Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974); Cleveland v. State, 287 So. 2d 347 (Fla. 3d DCA 1973). Other cases have granted new trials “in the interests of justice” without explicitly citing the rule. See, e. g., Dukes v. State, 356 So. 2d 873 (Fla. 4th DCA 1978); Ferber v. State, 353 So. 2d 1256 (Fla. 2d DCA 1978); McClain v.…
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…2d 743 (Fla. App.3d 1974); Bryant v. State, 290 So. 2d 122 (Fla.App.3d 1974); Kohn v. State, 289 So. 2d 48 (Fla.App.3d 1974); Harris v. State, 288 So. 2d 552 (Fla.App.3d 1974); McNeill v. State, 287 So. 2d 745 (Fla.App. 3d 1974); Cleveland v. State, 287 So. 2d 347 (Fla.App.3d 1973); Metchik v. State, 286 So. 2d 269 (Fla.App.3d 1973); Hutchins v. State, 286 So. 2d 244 (Fla. App.3d 1973), and Mylks v. State, 285 So. 2d 434 (Fla.App.3d 1973). See also Green v. State, 310 So. 2d 373 (Fla.App.3d 1975), and Durham…
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Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)…A. Fla.1974); Harris v. State, 288 So. 2d 552 (3d D.C.A. Fla.1974); Kohn v. State, 289 So. 2d 48 (3d D.C.A. Fla.1974); McNeill v. State, 287 So. 2d 745 (3d D.C.A. Fla.1974); Reynolds v. State, 293 So. 2d 743 (3d D.C.A. Fla.1974); Cleveland v. State, 287 So. 2d 347 (3d D.C.A. Fla.1973); Hutchins v. State, 286 So. 2d 244 (3d D.C.A. Fla.1973); Metchik v. State, 286 So. 2d 269 (3d D.C.A. Fla.1973); Mylks v. State, 285 So. 2d 434 (3d D.C.A. Fla.1973). Each of the above cases reflects a sequence of events where th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Partin v. State, 277 So. 2d 847 (Fla. 3d DCA 1973)