ROBERT CHARLES SCOGGINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a probationary sentence mitigated to time already served is not a nullity, and thus probation revocation is valid.
Appellant pleaded guilty to forgery and uttering a forged instrument, received concurrent jail sentences, and then had his sentences mitigated to time…
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PER CURIAM.
The appellant was charged by two separate informations with forgery and uttering a forged instrument. He pleaded guilty in each case. He was sentenced to one year in the Dade County jail on the first case and to one year in the Dade County jail on the second case, the sentences to run concurrently. Thereafter, within the sixty-day period allowed for the mitigation of sentence, see Rule 3.800(b), CrPR, 33 F.S.A. the trial court mitigated defendant’s sentences to the days already served in jail and two years probation.
Subsequently, appellant was found guilty of violation of his probation, which proba tion was revoked, whereupon he was sentenced to three years in the state penitentiary. Defendant was given credit for the time served in the Dade County jail prior to sentencing.
On this appeal, a single point is presented urging that the trial court erred in revoking defendant’s probation because the probationary sentence was a nullity. It is urged that the sentence imposed on mitigation was improper because it violated the rules for sentencing set forth in Williams v. State, Fla.App. 1973, 280 So. 2d 518.
We hold that the point is without merit inasmuch as the sentence to the ninety-nine days served in jail prior to the modification was simply the time already served. See Joins v. State, Fla.App. 1974, 287 So. 2d 742.
Affirmed.
The appellant having pointed out upon petition for rehearing that the conclusion of this court as to the legality of the sentence involved is contrary to the holdings in Jones v. State, Fla.App.1974, 296 So. 2d 519, the petition is granted.
It is ordered that this court’s opinion on this appeal filed July 16, 1974, is amended by striking the word “affirmed”, ar^d by the substitution in lieu thereof the following:
“The sentence upon revocation of probation violated the rule set forth in Jones v. State, Fla.App.1974, 296 So. 2d 519, 522, in that it operated to subject the defendant to the penalty of serving more than the portion of-the jail sentence which was withheld incident to placing him on probation. Therefore, the sentence is set aside and the cause remanded to the trial court for the imposition of a proper sentence upon violation of probation or the discharge of the appellant if he has at the time of resentencing served more than the portion of the jail sentence withheld incident to placing him on probation.
“Sentence reversed and cause remanded.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Joins v. State, 287 So. 2d 742 (Fla. 1st DCA 1974)
- Jones v. State, 296 So. 2d 519 (Fla. 3d DCA 1974)