DAVID LEE EATON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Lee Eaton was convicted of uttering a forged instrument and receiving stolen property arising from the same transaction. The trial court imposed a single sentence of six months in jail followed by two years probation, but the written judgment improperly split the sentence between the two counts. The appellate court reversed the probation revocation, finding the probationary portion void because no sentence was suspended.
The court held that the probationary portion of the sentence was void ab initio because the trial judge failed to suspend any part of the six-month jail sentence, and therefore the trial court lacked jurisdiction to revoke probation or impose a new sentence.
[1] A probationary sentence is void ab initio if the trial court fails to suspend any portion of the jail time imposed.
[2] A trial court lacks jurisdiction to revoke probation and impose a new sentence when the original probationary sentence was void.
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Join FLexlaw to unlock all legal intelligence“The trial judge having chosen to impose a sentence of six months in the county jail and further having failed to suspend any part thereof, the probationary portion of the sentence was void ab initio and, therefore, the trial court lacked jurisdiction to revoke probation and impose a new sentence.”
Establishes the core legal principle that probation is void when no portion of the custodial sentence is suspended
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Join FLexlaw to unlock all legal intelligenceEaton was charged with uttering a forged instrument and buying, receiving, or concealing stolen property (attempting to cash a stolen check). A jury f…
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PER CURIAM.
Defendant-appellant was charged by information with (1) uttering a forged instrument and (2) buying, receiving or concealing property, tried by jury and found guilty of both charges. Thereafter, a sentencing hearing was held and all agreed (the trial judge, prosecutor, and defense counsel) that since both charges arose out of the same transaction 1 only one sentence could be imposed.2 Thereupon, the trial judge sentenced the defendant to six months in the county jail to be followed by two years probation. However, the written judgment and sentence reflected that the defendant was sentenced to six months in jail as to the uttering of a forged instrument count and two years probation as to the buying, receiving or concealing stolen property count. Nevertheless, the order placing defendant on probation provides that defendant, having been found guilty on the above counts, would be placed on probation for two years after six months in the county jail. Sometime thereafter, an affidavit was filed wherein defendant was charged with violation of his probation. A hearing was held thereon. At the conclusion, the defendant was found to have violated his probation and then was sentenced to five years in the state penitentiary. This appeal followed.
Defendant-appellant contends that the trial court erred in revoking defendant’s probation as this probation was a nullity. We agree.
After a careful review of the record on appeal, it is evident that the entry of the order sentencing defendant to six months in the county jail on one count and two years probation on the other count was erroneous in that the trial judge and respective counsel correctly agreed that only one sentence could be imposed under the circumstances and thereupon the judge pronounced a single sentence of six months in the county jail to be followed by two years probation.
The trial judge having chosen to impose a sentence of six months in the county jail and further having. failed to suspend any part thereof, the probationary portion of the sentence was void ab initio and, therefore, the trial court lacked jurisdiction to revoke probation and impose a new sentence. See Hutchins v. State, Fla.App.1973, 286 So. 2d 244; Cleveland v. State, Fla.App.1973, 287 So. 2d 347; Kohn v. State, Fla.App.1974, 289 So. 2d 48; Bryant v. State, Fla.App.1974, 290 So. 2d 122; Reynolds v. State, Fla.App.1974, 293 So. 2d 743.
Accordingly, the order revoking probation is reversed and the cause remanded to the trial court with directions to discharge the defendant-appellant as to the five year sentence which followed his revocation of probation.
Reversed and remanded.
. Defendant’s attempt to cash a stolen check at a package store.
. See Jackson v. State, Fla.App.1974, 293 So. 2d 136.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hutchins v. State, 286 So. 2d 244 (Fla. 3d DCA 1973)
- Kohn v. State, 289 So. 2d 48 (Fla. 3d DCA 1974)
- Hines v. State, 289 So. 2d 48 (Fla. 2d 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)
- Reynolds v. State, 293 So. 2d 743 (Fla. 3d DCA 1974)
- Dachton v. State, 287 So. 2d 347 (Fla. 3d DCA 1973)
- Jackson v. State, 293 So. 2d 136 (Fla. 3d DCA 1974)