STATE OF FLORIDA, APPELLANT,
v.
ROBERT CAIVANO, APPELLEE
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The State appealed a trial court's order placing a convicted drug offender on probation instead of sentencing him as directed by appellate mandate. The court granted certiorari and quashed the probation order, holding that the trial court violated the appellate court's clear directive by withholding sentence rather than imposing the required sentence for the highest offense.
The trial court violated the appellate mandate. There is a clear legal distinction between imposing a sentence and withholding imposition of sentence with conditions of probation. A trial court cannot withhold imposition of sentence when directed to sentence a defendant for the highest offense.
[1] A state cannot appeal an order granting probation in the absence of a specific statutory provision allowing such an appeal.
[2] An appellate court may treat an improper appeal as a petition for a writ of common law certiorari if the lower court departed from the essential requirements of law.
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Join FLexlaw to unlock all legal intelligence“There is a clear distinction between a sentence and conditions of probation.”
Establishes the fundamental legal principle that withholding imposition of sentence and imposing probation conditions are distinct legal actions
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Join FLexlaw to unlock all legal intelligenceCaivano was convicted of possession of cocaine and sale of cocaine, and initially sentenced to three years imprisonment for each conviction. On appeal…
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HOBSON, Judge.
The State attempts to appeal from an order withholding sentence and placing appellee Caivano on probation. No provision has been made for appeal by the State from an order granting probation. See Rule 6.3 FAR; §§ 924.07 and 924.071 F.S.; State v. Williams, Fla.App.2d 1970, 237 So. 2d 69. However, this court may treat the appeal as a petition for a writ of common law certiorari if the court departed from the essential requirements of law. State v. Smith, Fla.App.1st 1971, 254 So. 2d 402; State v. Smith, Fla.1972, 260 So. 2d 489; Cf. Williams, supra.
After Caivano had been convicted of possession of cocaine and sale of the same cocaine, and sentenced to three years imprisonment for each conviction, he appealed the judgment and sentences to this court. This court affirmed the judgment but vacated both sentences because “only one sentence should have been imposed and that for the highest offense charged.” The cause was remanded with directions that Caivano be presented to the trial court and properly sentenced “in accordance herewith.” Caivano v. State, 276 So. 2d 245. Upon remand the lower court, instead of imposing a sentence for the highest offense charged, placed Caivano on probation for three years.
There is a clear distinction between a sentence and conditions of probation. Williams, supra. Rule 3.700 RCrP defines sentence as “the pronouncement by the Court of the penalty imposed upon a defendant for the offense of which he has been adjudged guilty.” Rule 3.790 RCrP provides in part:
“Pronouncement and imposition of sentence of imprisonment shall not be made upon a defendant who is to be placed on probation regardless of whether such defendant has or has not been adjudicated guilty.”
In withholding imposition of sentence the lower court altered the mandate of this court to sentence Caivano for the highest offense charged.
Certiorari is granted and the order of the trial court placing Caivano on probation is quashed. This cause is remanded with directions that the trial court properly sentence Caivano in accordance with our mandate of October 25, 1973.
McNULTY, C. J., and BOARDMAN, J., concur.
ON PETITION FOR REHEARING
PER CURIAM.
Caivano contends that this court failed to take into consideration his motion for mitigation of sentence.
After this court had vacated the sentences originally imposed, and the Supreme Court of Florida had denied certiorari, our mandate went down to the trial court on October 25, 1973. On November 26, 1973, Caivano filed his motion for mitigation of sentence. See Rule 3.800. RCrP. This motion was filed prior to the resentencing in accordance with our mandate. At that time there was no “legal sentence imposed” which could be reduced, since the original sentences had been vacated. The motion was therefore prematurely filed.
Appellee’s petition for rehearing is hereby denied.
Denied.
McNULTY, C. j., and HOBSON and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Pettis, 520 So. 2d 250 (Fla. 1988)…r section 924.07 as petition for certiorari and granting review); State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977) (treating state appeal of nonappealable order under section 924.07 as petition for certiorari and granting review); State v. Caivano, 304 So. 2d 139 (Fla. 2d DCA 1974), cert. denied, 314 So. 2d 774 (1975) (treating state appeal of nonap-pealable order under section 924.07 as petition for certiorari and granting review); State v. Gillespie, 227 So. 2d 550 (Fla. 2d DCA 1969) (granting state certio…
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Caivano v. State of Fla. & Collier Cnty., 331 So. 2d 331 (Fla. 2d DCA 1976)…remain in effect. The cause is remanded to the trial court for further proceedings consistent with this opinion. HOBSON, A. C. J., and SCHEB, J., concur. . Caivano v. State, Fla.App.2d, 1973, 276 So. 2d 245. . State v. Caivano, Fla.App.2d, 1974, 304 So. 2d 139. . In State for the Use and Benefit of Dade County v. All Florida Surety Co., Fla.1952, 59 So. 2d 849, the Supreme Court of Florida said: “This Court has repeatedly held that the offense charged must be stated in the appearance bond and that the li…
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State v. McGRAW, 474 So. 2d 289 (Fla. 3d DCA 1985)…ontends that the order of probation is not an illegal sentence appeala-ble under section 924.07(5), Florida Statutes (1983) on the theory that probation is not a sentence. State v. Gibson, 353 So. 2d 670 (Fla. 2d DCA 1978); Wilcox; State v. Caivano, 304 So. 2d 139 (Fla. 2d DCA 1974), cert. denied, 314 So. 2d 774 (Fla.1975).3 We disagree. A word’s definition may vary depending upon the context. While it may be necessary for some purposes to distinguish between a punitive (sentencing) and rehabilitative (probat…
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
- State v. Smith, 260 So. 2d 489 (Fla. 1972)
- State v. Wardell Robert Williams, 237 So. 2d 69 (Fla. 2d DCA 1970)
- Caivano v. State, 276 So. 2d 245 (Fla. 2d DCA 1973)
- Thelmo Johnson, Jr. v. State, 254 So. 2d 402 (Fla. 2d DCA 1971)
- State v. Smith, 254 So. 2d 402 (Fla. 1st DCA 1971)