ROY L. MCNEILL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roy McNeill appealed a probation revocation and jail sentence, challenging both the trial court's jurisdiction to revoke probation after the probation period expired and the excessiveness of the imposed sentence. The appellate court affirmed the revocation but modified the sentence by striking the subsequent probationary term as excessive.
The court has jurisdiction to revoke probation and sentence a defendant even if the arrest warrant is not served until after the probation period expires, provided the warrant was issued during the probation period. However, the sentence imposing an additional probationary term following jail time was excessive and therefore struck.
[1] A court retains jurisdiction to sentence a defendant for a probation violation even if the probation period expires after the issuance of an arrest warrant for the violat…
[2] A sentence of one year in jail followed by one year of probation for a probation violation may be deemed excessive.
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Join FLexlaw to unlock all legal intelligence“Where the warrant for the defendant's arrest because of the violation of probation is issued within the period of probation as in the case sub judice, the court does not lose jurisdiction of a defendant by termination of his period of probation, but has the authority to sentence him for the offense of which he was convicted even though the arrest warrant is not served until a date subsequent to termination of probation.”
Establishes the controlling legal principle that jurisdiction is preserved by timely warrant issuance despite late execution.
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Join FLexlaw to unlock all legal intelligenceMcNeill was adjudicated guilty of uttering worthless checks on February 13, 1970 and placed on probation for 18 months. A warrant for his arrest based…
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PER CURIAM.
Defendant-appellant seeks review of an order of revocation of probation and a sentence to one year in the Dade County jail followed by a one year term of probation.
On February 13, 1970 the defendant was adjudicated guilty of the crime of uttering worthless checks and placed on probation for 18 months, commencing as of the above date. The trial court on July 9, 1971 issued a warrant for the defendant’s arrest based upon an affidavit of violation of probation wherein it was alleged that defendant had violated condition (B) of his probation, to wit: failure to submit to his supervisor the required monthly reports. The warrant remained unexecuted until June 16, 1973. Defendant’s probation supervisor on June 29, 1973 filed an amended affidavit of violation of probation which in addition to violation of condition (B) above, also contained an allegation of violation of condition (K), failure to make restitution on some checks. A hearing was held on the violation of probation charges on July 3, 1973, and thereafter the trial judge sentenced appellant to one year in the county jail to be followed' by a one year period of probation.
Appellant first contends that the trial court was without jurisdiction to entertain an application of revocation of probation after the expiration of the term of probation.
Where the warrant for the defendant’s arrest because of the violation of .probation is issued within the period of probation as in the case sub judice, the court does not lose jurisdiction of a defendant by termination of his period of probation, but has the authority to sentence him for the offense of which he was convicted even though the arrest warrant is not served until a date subsequent to termination of probation. Carroll v. Cochran, Fla.1962, 140 So. 2d 300. Thus, this argument of appellant must fail,
Appellant secondly contends that the trial court erred in imposing the sentence of one year in jail, to be followed by one year of probation.
There is merit in this contention. Clearly the sentence is excessive. See Williams v. State, Fla.App.1973, 280 So. 2d 518. Therefore, that portion of the sentence which sentences the appellant to a probationary period is stricken. The order revoking probation is affirmed; the sentence is modified and as modified is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…ed by the Third District in Reynolds v. State, 293 So. 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…
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Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)…od could only be within the one year sentence. Williams was followed by Bryant v. State, 290 So. 2d 122 (3d D.C.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); Myl…
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Watson v. State, 497 So. 2d 1294 (Fla. 1st DCA 1986)…evoking appellant’s probation. Probation is terminated only by a valid order of revocation or the running of its term, and not by the mere execution of an arrest warrant for violation of probation. See section 948.06, Fla.Stat.; cf McNeill v. State, 287 So. 2d 745 (Fla. 3d DCA 1974) (the issuance of a warrant assures continued jurisdiction of the trial court to revoke probation, despite the fact that the period of probation has run in the interim). AFFIRMED. ERVIN and BARFIELD, JJ., concur.…
Authorities Cited
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Carroll v. Cochran, 140 So. 2d 300 (Fla. 1962)
- Bell v. Cochran, 140 So. 2d 300 (Fla. 1962)