SAMUEL LOUIS FULLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Fuller was convicted by jury of possessing a stolen motor vehicle and received a total sentence of 17 years across multiple cases, with probation revoked in four prior cases based on the new conviction. The appellate court affirmed the conviction and modified the sentence by eliminating one illegal consecutive sentence, reducing the total to 12 years.
The sentence imposed in case 71-8873-A after probation revocation was illegal and must be eliminated because it constituted an illegal consecutive sentence under established appellate precedent. The revocation of probation in cases 71-9213 and 71-9322 did not violate due process because the jury trial on the underlying charge satisfied procedural due process requirements prior to probation revocation.
[1] A sentence is illegal if it exceeds the statutory maximum for the offense.
[2] A jury verdict of guilty on a new charge can constitute sufficient grounds for revocation of probation in other cases.
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Join FLexlaw to unlock all legal intelligence“In accordance with our holdings in e. g., Williams v. State, Fla.App. 1973, 280 So. 2d 518; Hutchins v. State, Fla.App.1973, 286 So. 2d 244; Cleveland v. State, Fla.App.1973, 287 So. 2d 347; Bryant v. State, Fla.App.1974, 290 So. 2d 122, we hold that the sentence in case number 71-8873-A was illegal, and hence the sentence imposed by the trial court after revoking probation in that case must be eliminated.”
Establishes the legal principle that the sentence structure in case 71-8873-A violated established appellate precedent and must be struck
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Join FLexlaw to unlock all legal intelligenceFuller was convicted by jury of possession of a stolen motor vehicle and sentenced to five years in prison. The trial court then revoked his probation…
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HENDRY, Judge.
The appellant was found guilty by a jury of a charge of possession of a stolen motor vehicle. The trial court adjudicated him guilty and imposed a sentence of five years in the state penitentiary.
At the same time, the court determined that the jury verdict on the subsequent felony charge constituted sufficient grounds for revocation of probation in four other cases.
In case number 71-587-A in the trial court the court sentenced the appellant to jail time already served. In case number 71-8873-A the court sentenced appellant to five years in prison to run consecutively to the jury conviction and the sentence imposed thereon.
In case number 71-9213 the court imposed another five-year jail term, also to run consecutively and in case number 71-9322, two years imprisonment to run consecutively. The total sentence was seventeen years imprisonment.
In his brief, appellant presents three points on appeal. First, the appellant attacks the revocation of probation in case number 71-587-A and 71-8873-A on the ground that they are illegal sentences. We find it unnecessary to disturb the sentence in 71-587-A because from the record it appears that the appellant had already fully served his six months incarceration when the sentence was mitigated. Moreover, the court only imposed a sentence of time 'already served in that case, and we consider the case to be now moot.
However, with respect to case number 71-8873-A, we agree with the appellant’s contention. The record reflects that on December 6, 1971 the appellant was sentenced to a year in the Dade County Jail, the maximum sentence to county jail. Thereafter, on July 25, 1972, the court mitigated this sentence and in connection with case number 71-9213 and 71-9322, placed the appellant on two years probation.
In accordance with our holdings in e. g., Williams v. State, Fla.App. 1973, 280 So. 2d 518; Hutchins v. State, Fla.App.1973, 286 So. 2d 244; Cleveland v. State, Fla.App.1973, 287 So. 2d 347; Bryant v. State, Fla.App.1974, 290 So. 2d 122, we hold that the sentence in case number 71-8873-A was illegal, and hence the sentence imposed by the trial court after revoking probation in that case must be eliminated.
The appellant also argues that the revocation of probation in the other two cases must fail because he was not given a revocation hearing providing him due process of law. We reject this contention because in our view, the appellant’s jury trial satisfied the requirements of procedural due process prior to the revocation of probation. See, Bernhardt v. State, Fla.1974, 288 So. 2d 490; Singletary v. State, Fla. App. 4th, 1974, 290 So. 2d 116; Smith v. State, Fla.App. 3rd, 1974, 292 So. 2d 69.
We have considered appellant’s two other points and find them to be without substantial merit. Therefore, for the reasons stated, the judgment appealed is affirmed and the sentences are modified to eliminate therefrom the sentence imposed in case number 71-8873-A. It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978)…e basis of a probation revocation. Spratling v. State, 310 So. 2d 306 (Fla. 1st DCA 1975). The revocation of probation following a guilty verdict on charges upon which the revocation was based was said to comport with due process in Fuller v. State, 294 So. 2d 367 (Fla. 3d DCA 1974). Our holding does not conflict with Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977), because the record in that case does not indicate that any affidavit of probation violation was filed, or that Reynolds was given any kind…
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Isom v. State, 387 So. 2d 529 (Fla. 3d DCA 1980)…sider the matter at the time of the trial in chief. Counsel for the defendant in the trial court made no objections; acquiesced in the proceedings, and we find no error occurred. Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968); Fuller v. State, 294 So. 2d 367 (Fla. 3d DCA 1974); State v. Spratling, 336 So. 2d 361 (Fla.1976); Hobbs v. State, 378 So. 2d 321 (Fla. 2d DCA 1980). However, we find the trial court erred in basing one of its grounds for revocation because of an alleged robbery of one Willie Dani…
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Fuller v. State, 320 So. 2d 442 (Fla. 3d DCA 1975)…ppellant-petitioner argues that where probation is granted “in each case” after conviction upon several independent crimes and one of the sentences of probation is illegal, he must be discharged from all probation. See Fuller v. State, Fla.App.1974, 294 So. 2d 367. We do not agree inasmuch as probation in each case constituted an independent judicial act and there is no relationship other than one based on the fact that they were combined for sentencing. Affirmed.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Singletary v. State, 290 So. 2d 116 (Fla. 4th DCA 1974)
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Hutchins v. State, 286 So. 2d 244 (Fla. 3d DCA 1973)
- Burt Smith v. State, 292 So. 2d 69 (Fla. 3d DCA 1974)
- Cleveland Bryant v. State, 290 So. 2d 122 (Fla. 3d DCA 1974)
- Cleveland v. State, 287 So. 2d 347 (Fla. 3d DCA 1973)
- Dachton v. State, 287 So. 2d 347 (Fla. 3d DCA 1973)