RONALD LENNARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Lennard appeals an order denying his motion to vacate his probation revocation sentence. The court held that the original sentencing order was invalid because the trial court impermissibly imposed both a fixed term of incarceration and probation without withholding part of the sentence as required by Florida law.
The probation portion of the sentence was void and a nullity because the trial court failed to withhold imposition of part of the sentence as required by law. All actions taken pursuant to the invalid probation, including the revocation order and subsequent sentence, are vacated and set aside.
[1] A probationary term imposed after a defendant has already served a period of incarceration is void if the court did not expressly withhold imposition of a portion of the…
[2] A trial court cannot impose both incarceration and probation in a final judgment without first withholding the imposition of a portion of the sentence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in order to impose a valid term of probation the trial court must withhold imposition of a portion of the sentence imposed upon the defendant.”
Establishes the statutory requirement for valid probation sentencing under F.S. 948.01(4)
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Join FLexlaw to unlock all legal intelligenceDefendant was adjudicated guilty of grand larceny on June 9, 1972, and sentenced to one year in county jail with credit for 56 days served, plus three…
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MAGER, Judge.
This is an appeal from an order denying defendant’s motion to vacate sentence which motion sought to challenge the correctness of an order revoking his probation. Defendant’s term of probation was predicated upon a final judgment dated June 9, 1972, adjudicating him guilty of the offense of grand larceny and sentencing him to
“ . . . serve 1 year in the county jail of St. Lucie County, Florida, credit 56 days jail time served and place on probation for a period of 3 years.”
Apparently, after serving his term of incarceration, defendant violated condition (h) of his probation in that on June 24, 1974, he plead guilty to the offense of attempted grand larceny and his probation was revoked. Based upon the decision in Williams v. State, Fla.App.1973, 280 So. 2d 518, 519, we held that the probation portion of such final judgment is a “nullity and is void”. The language of F.S. 948.-01(4) makes it clear that
“ . . . in order to impose a valid term of probation the trial court must withhold imposition of a portion of the sentence imposed upon the defendant.” (Williams, supra.)
Clearly, there is no provision in the law authorizing the trial court to sentence a defendant to probation.
“If incarceration is prescribed, the court may direct the defendant be placed on probation upon completion of any specified period of such sentence. But in doing so, the court must stay and withhold the imposition of a part of such sentence.”
Brown v. State, Fla.App.1974, 302 So. 2d 430, 431, 432. At present, the court in its final judgment did not withhold the imposition of any part of its sentence but rather incorrectly sentenced appellant to both incarceration and probation which it clearly could not do. This case is to be distinguished from a situation where imprisonment is made a condition of probation. This court has held that incarceration as a condition of probation is lawful, Lewis v. State, 298 So. 2d 540 (Fla.App.1974).
Therefore, because the probationary portion of the original sentence is a nullity, all actions taken pursuant thereto, including the order of revocation of probation and sentence thereon, are of no force and effect and are vacated and set aside. The order appealed is hereby reversed and the cause remanded to the trial court for further proceedings consistent herewith.
Reversed and remanded.
WALDEN and CROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…8 (1934); People v. Fisher, 237 Mich. 504, 212 N.W. 70 (1927); 24 C.J.S. Criminal Law § 1618(8) (1961), and a subsequent decision by the Second District in Sanders v. State, 268 So. 2d 553 (Fla.App.2d 1972). The Fourth District, in Lennard v. State, 308 So. 2d 579 (Fla.App.4th 1975), and Brown v. State, 302 So. 2d 430 (Fla.App.4th 1974), held the sentencing court, in imposing the split sentence probation alternative, must stay and withhold the imposition of part of the sentence. The First District, in Waters…
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Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000)…; Fla. R.Crim. P. 3.790(a). Id. Chapter 948 draws clear distinctions between the term of a sentence and the period of probation. Thus, in a technical sense, a trial court is not authorized to sentence a defendant to probation. See Lennard v. State, 308 So. 2d 579 (Fla. 4th DCA 1975) (citing Brown v. State, 302 So. 2d 430 (Fla. 4th DCA 1974)). In Brown, we stated: A court may impose a sentence of imprisonment or fine upon a defendant found guilty of an offense, or it may withhold sentence in whole or in part…
Authorities Cited
- Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)
- Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)
- Brown v. State, 302 So. 2d 430 (Fla. 4th DCA 1974)