OTIS LEE HARDRICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Hardrick appeals the revocation of his probation and resulting 15-year sentence for breaking and entering a telephone booth and concurrent 5-year sentence for grand larceny. The court affirmed the revocation but remanded because the trial court illegally imposed concurrent sentences for offenses arising from the same transaction.
The court held that challenges to the sufficiency of evidence from the original conviction cannot be raised in an appeal of probation revocation, as such appeals may only review proceedings after the probation order. However, the concurrent imposition of sentences for breaking and entering and grand larceny arising from the same transaction was improper.
[1] An appeal from an order revoking probation may only review proceedings that occurred after the order of probation was entered.
[2] Sufficiency of evidence issues that could have been raised prior to an order of probation must be raised by a direct appeal from that order.
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Join FLexlaw to unlock all legal intelligence“an appeal of an order revoking probation may review only proceedings after the order of probation”
Establishes the procedural limitation on probation revocation appeals, preventing review of the sufficiency of evidence from the original conviction
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Join FLexlaw to unlock all legal intelligenceHardrick was convicted of breaking and entering a telephone booth with intent to commit felony grand larceny, and grand larceny. The trial judge withh…
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HOBSON, Acting Chief Judge.
Appellant Hardrick was convicted of breaking and entering a telephone booth with intent to commit a felony, to wit: grand larceny, and grand larceny. The trial judge withheld adjudication of guilt and imposition of sentence, and placed Hardrick on probation for a term of five years. Hardrick did not appeal the order granting probation.
Some months after his conviction, Hard-rick was charged with violating the terms of his probation. Hardick pled guilty to the charge, probation was revoked and he was sentenced to 15 years for breaking and entering and to a concurrent sentence of five years for grand larceny. Hardrick appealed.
Hardrick contends that there was insufficient evidence to convict him of the charge of breaking and entering, relying on Jackson v. State, Fla.App.2d 1972, 259 So. 2d 739, and State v. Jackson, Fla.1973, 281 So. 2d 353. In State v. Jackson the Supreme Court held that the convictions of Hardrick’s co-defendants Jackson and Fisher for breaking and entering a telephone booth with intent to commit a felony could not be sustained because the implied consent to enter must be negated. The opinion of this court in Jackson was modified and the reversal of convictions for breaking and entering was affirmed since non-consent to enter was not established by the evidence.
Hardrick also contends that the evidence as to the value of the property taken was not sufficient to convict him of the charge of grand larceny.
Hardrick is thereby attempting to attack proceedings prior to the order of probation. F.S. Section 924.06 F.S.A. provides that an appeal of an order revoking probation may review only proceedings after the order of probation. The question of sufficiency of the evidence could or should have been raised by direct appeal from the order placing Hardrick on probation. McGriff v. State, Fla.App.3d 1972, 259 So. 2d 508. See Delaney v. State, Fla.1966, 190 So. 2d 578; Burgess v. State, Fla.App. 1967, 194 So. 2d 698.
Hardrick next contends that the lower court illegally imposed two separate concurrent sentences for offenses which were shown by the record to be facets of the same transaction, asserting that the only sentence that should have been imposed was for the highest offense. Cone v. State, Fla. 1973, 285 So. 2d 12.
In Edmond v. State, Fla.App.2d 1973, 280 So. 2d 449, we held that the imposition of a maximum sentence of 15 years for breaking and entering with intent to commit a felony precludes the additional imposition of a maximum sentence for grand larceny shown as proof of felonious intent. See also Baggett v. State, Fla.App.2d 1974, 287 So. 2d 336; Gelis v. State, Fla.App.2d 1973, 287 So. 2d 368; Nettles v. State, Fla.App.2d 1974, 293 So. 2d 378.
Accordingly, this cause is remanded to the trial court with directions to vacate the sentence on the lesser offense of grand larceny.
The order appealed is affirmed in all other respects.
McNULTY and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974)…conditions of his probation he can not now, having violated those conditions, challenge the order. If he had any grievance, he could have either refused probation or appealed the order and its contents. Section 924.06(2) F.S.1973; Hardrick v. State, 293 So. 2d 135 (2d D.C.A.Fla.1974). The second appellate point is : II. Whether a revocation of probation based solely on hearsay should be vacated ? We have examined the record and, while there is hearsay evidence reflected, there is additional direct, compete…
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Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999)…nditions of his probation he can not now, having violated those conditions, challenge the order. If he had any grievance, he could have either refused probation or appealed the order and its contents. Section 924.06(2), F.S. 1973; Hardrick v. State, 293 So. 2d 135 (2d D.C.A.Fla.1974).3 Id. at 310. In a more recent case, Mathis v. State, 683 So. 2d 634 (Fla. 4th DCA 1996), this court, without addressing the foregoing issue, considered the validity of a condition of probation on an appeal from an order revoki…1 / 2
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Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979)…“[a]n appeal of an order revoking probation may review only proceedings after the order of probation. .” (Emphasis supplied). Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974); Stuart v. State, 353 So. 2d 165 (Fla. 3d DCA 1978); Hardrick v. State, 293 So. 2d 135 (Fla. 2d DCA 1974), rev’d on other grounds, 313 So. 2d 695 (Fla.1975). The state further contends that this issue was not presented to the trial court and must be presented in a motion to vacate judgment and sentence rather than by way of an appeal.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Cone v. State, 285 So. 2d 12 (Fla. 1973)
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- Googe v. Publix Super Mkt., Inc., 190 So. 2d 578 (Fla. 1966)
- State v. Bennie Jackson and Henry Fisher, 281 So. 2d 353 (Fla. 1973)
- McGRIFF v. State, 259 So. 2d 508 (Fla. 3d DCA 1972)
- Baggett v. State, 287 So. 2d 336 (Fla. 2d DCA 1974)
- Cummings v. Cummings, 287 So. 2d 368 (Fla. 2d DCA 1973)
- Electra G. Scharps v. Scharps, 293 So. 2d 378 (Fla. 2d DCA 1974)
- Burgess v. State, 194 So. 2d 698 (Fla. 2d DCA 1967)
- Burns v. State, 259 So. 2d 739 (Fla. 2d DCA 1972)