RONALD KOHN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ronald Kohn appealed his conviction for cocaine and cannabis possession, arguing that his guilty plea was induced by state promises of probation only, but the trial court imposed six months in county jail plus one year probation. The court affirmed the conviction but modified the sentence by striking the probation component, as Florida law does not authorize combining county jail time with probation.
The guilty plea was voluntary and appellant cannot automatically receive another sentencing opportunity merely because he expected a lighter sentence. However, the sentence as imposed—county jail time followed by probation—violates Florida law, so the probation component must be stricken and the sentence is affirmed as modified to six months county jail only.
[1] A defendant who pleads guilty and receives a sentence harsher than anticipated cannot automatically expect a new sentencing opportunity without demonstrating a reasonable…
[2] A court may consider the legality of a sentence sua sponte in the interest of justice, even if the issue was not raised on appeal.
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Join FLexlaw to unlock all legal intelligence“Defendants who plead guilty and are given a stiffer sentence than they anticipated cannot automatically expect to receive another try at a lighter sentence. It is not enough for a defendant to argue that he was under an impression that a promise of a lesser penalty had been made by the judge or prosecutor. A reasonable basis for such an impression must be shown.”
Establishes that mere expectations of a lighter sentence, without reasonable basis for a promise, do not invalidate a guilty plea or entitle a defendant to resentencing.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with felony cocaine possession and felony cannabis possession in an amount greater than five grams. After plea negotiations, he …
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HENDRY, Judge.
Appellant was charged with possession of cocaine -and possession of cannabis in an amount greater than five grams, both felonies. After plea bargaining negotiations had been conducted with the state, the appellant plead guilty to possession of cocaine, a felony, and possession of cannabis, as a misdemeanor. Following a presen-tence investigation, the trial court sentenced appellant to six months incarceration in the county jail followed by one year on probation.
Thereafter, appellant filed a motion to mitigate the sentence, which the trial judge denied. At the hearing on the motion to mitigate and prior' to appellant’s entry of his guilty plea, the trial judge clearly stated that he would not be bound by the state or police in imposing sentence. Now, appellant argues that the trial court erred by imposing a sentence more severe than contemplated by the state or the appellant. He contends that his guilty plea was induced by promises of the state that in consideration for appellant’s cooperation with the police he would receive a sentence of probation only.
However, the record in this cause reflects that appellant’s guilty plea was made voluntarily. Our Supreme Court in Costello v. State, Fla. 1972, 260 So. 2d 198 anticipated situations such as is presented in this case as follows:
“Defendants who plead guilty and are given a stiffer sentence than they anticipated cannot automatically expect to receive another try at a lighter sentence. It is not enough for a defendant to argue that he was under an impression that a promise of a lesser penalty had been made by the judge or prosecutor. A reasonable basis for such an impression must be shown ...”
We do note, however, that the sentence in this case is not free from error. The point was not raised in the briefs, but this court sua sponte, and in the interest of justice, may consider the legality of the sentence. Williams v. State, Fla.App.1973, 280 So. 2d, 518; FAR 6.16, 32 F.S.A. This court has held quite succinctly that a designated sentence to the county jail followed by a period of probation is not. authorized by Fla.Stat. § 948.01(4), F. S.A. See Williams v. State, supra; Hutchins v. State, Fla.App., 286 So. 2d 244, opinion filed November 6, 1973; Cleveland v. State, Fla.App., 287 So. 2d 347, opinion filed December 4, 1973. Accordingly, the provision in the sentence for probation must be stricken, and the sentence as modified is affirmed.
Affirmed as modified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)…to address this problem, and we leave its resolution 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…
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…er to impose any punishment for a violation of the probation. This Williams deci [*23] sion was followed 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, 2…
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Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)…ant.” Id. at 519. and held that the probationary period 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); Met…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Costello v. State, 260 So. 2d 198 (Fla. 1972)
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Hutchins v. State, 286 So. 2d 244 (Fla. 3d DCA 1973)
- Cleveland v. State, 287 So. 2d 347 (Fla. 3d DCA 1973)
- Dachton v. State, 287 So. 2d 347 (Fla. 3d DCA 1973)