JOHNNY LEE GREEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a sentence imposing one year in county jail as a condition of probation for escape, holding that such a condition is improper because probation is rehabilitative and requires the probationer to be at liberty, not in confinement.
A sentence to county jail as a condition of probation is improper. The court held that probation is rehabilitative in nature and presupposes the probationer is not in prison confinement, and that it is contradictory to withhold sentence and place someone on probation while simultaneously imposing jail time as a condition of that probation.
[1] A jail sentence imposed as a condition of probation is improper when it is punitive in nature and contradicts the rehabilitative purpose of probation.
[2] Imposing a jail sentence as a condition of probation is contradictory to the concept of withholding imposition of sentence and placing an offender on probation.
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Join FLexlaw to unlock all legal intelligence“Probation is a matter of grace extended to the offender usually on the basis of a pre-sentence investigation which suggests that he is not likely to repeat his criminal conduct and could be rehabilitated while at liberty under supervision.”
Establishes the rehabilitative purpose of probation and its underlying basis in the offender's likelihood of rehabilitation at liberty.
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Join FLexlaw to unlock all legal intelligenceDefendant-appellant was convicted of escape. The trial judge withheld imposition of sentence and placed the defendant on probation, but as a condition…
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PER CURIAM.
Defendant-appellant was informed against for escape, and found guilty. The trial judge withheld imposition of sentence and placed the defendant on probation. However, as a condition thereof the judge ordered that appellant be imprisoned in the county jail for one year. Appellant contends that a one year sentence to the county jail as a condition of probation is improper. We agree.
Probation is a matter of grace extended to the offender usually on the basis of a pre-sentence investigation which suggests that he is not likely to repeat his criminal conduct and could be rehabilitated while at liberty under supervision. Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947); State v. Cochran, Fla.1962, 140 So. 2d 597; Pickman v. State, Fla.App.1963, 155 So. 2d 646. Furthermore, probation being rehabilitative as opposed to punitive in nature presupposes that the probationer is not in prison confinement. See Roy v. State, Fla.App.1967, 207 So. 2d 52. Thus we con-elude that the sentence to the county jail in the case sub judice as a condition of probation was improper. Cf. Avila v. State, Fla.App.1974, 306 So. 2d 550. In addition we find it contradictory to withhold the imposition of sentence, place an offender on probation and then impose a jail sentence as a condition of that probation. For as the Florida Supreme Court has stated in Brumit v. Wainwright, Fla.1973, 290 So. 2d 39:
“ . . . [A] man cannot be both in jail and out on parole at the same time; he is either in or out. There are no ‘free’ men in jail. . . . ”
Last, we repeatedly have held that it is illegal to sentence an offender to a specified term in the county jail to be followed by a period of probation without suspending any portion of the jail sentence. See Avila, supra and cases cited therein. The one year sentence to the county jail as a condition of probation is simply a subterfuge for the imposition of the hereinabove invalid type of sentence.
Before concluding, we note that appellee, the State of Florida relies upon Lewis v. State, Fla.App. 4th 1974, 298 So. 2d 540 which stands for the proposition that pursuant to F.S. § 948.03(2) a judge may impose a jail sentence as a condition of probation. For the reasons cited hereinabove, we can not accept this decision of our sister court.
Accordingly, the sentence herein appealed is reversed and the cause remanded to the trial court for proper sentencing in accordance herewith.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Jones, 327 So. 2d 18 (Fla. 1976)…3d 1974); Cleveland v. State, 287 So. 2d 347 (Fla.App.3d 1973); Metchik v. State, 286 So. 2d 269 (Fla.App.3d 1973); Hutchins v. State, 286 So. 2d 244 (Fla. App.3d 1973), and Mylks v. State, 285 So. 2d 434 (Fla.App.3d 1973). See also Green v. State, 310 So. 2d 373 (Fla.App.3d 1975), and Durham v. State, 304 So. 2d 146 (Fla.App.3d 1974). In Hutchins v. State, supra, the Third District further interpreted Section 948.-01(4), Florida Statutes (1973), by saying: “. . . Thus, where a court in sentencing a defend…
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Cummings v. State, 310 So. 2d 374 (Fla. 3d DCA 1975)…an order of the trial court which stayed imposition of a sentence and placed him on probation for a period of three years. As a condition thereof, the appellant was to serve one year in the county jail. This court, in Green v. State, Fla.App.1975, 310 So. 2d 373 was confronted with the identical question raised herein and found the sentence to be illegal. Therefore, based on the reasons and conclusions set forth in Green v. State, supra, the sentence appealed is reversed and this cause remanded to the tria…
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State v. Green, 327 So. 2d 28 (Fla. 1976)…OVERTON, Justice. This cause is before this Court on petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 310 So. 2d 373 (Fla.App. 3d 1975). The Third District held illegal a one-year term in the county jail as a condition of a five-year probation for the felony offense of escape. The District Court decision .conflicts with our decision in State v. Jones, 327 So. 2d 1…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- State ex rel. Lewis Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- Brumit v. Louie L. Wainwright, 290 So. 2d 39 (Fla. 1973)
- ROY v. State, 207 So. 2d 52 (Fla. 2d DCA 1967)
- Lewis v. State, 298 So. 2d 540 (Fla. 4th DCA 1974)
- Pickman v. State, 155 So. 2d 646 (Fla. 3d DCA 1963)
- Sens v. Slavia, Inc., 306 So. 2d 550 (Fla. 3d DCA 1975)