HENRY F. WATTS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Watts was convicted of aggravated assault and sentenced to six years of probation, which exceeded the five-year maximum permissible sentence for the crime. The Florida District Court of Appeal held that following a 1974 statutory amendment, courts lack authority to impose probation terms extending beyond the maximum permissible sentence, and remanded for resentencing.
A trial court is powerless to extend a period of probation beyond the maximum permissible sentence except as expressly provided in the statute. Following the 1974 amendment, there no longer exists any express statutory basis for allowing probation to extend beyond the maximum sentence. The judgment of conviction is affirmed, but the case is remanded for imposition of a probation term consistent with the statutory maximum.
[1] A court is powerless to extend a period of probation beyond the maximum permissible sentence except as expressly provided by statute.
[2] Effective July 1, 1974, the statutory proviso limiting probation terms to two years beyond the maximum permissible sentence was eliminated.
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Join FLexlaw to unlock all legal intelligence“a court is now powerless to extend a period of probation beyond the maximum permissible sentence except as expressly provided in that statute”
States the core holding regarding judicial authority to impose probation sentences after the 1974 statutory amendment
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Join FLexlaw to unlock all legal intelligenceWatts was convicted of aggravated assault stemming from an occurrence on September 29, 1974. The maximum permissible sentence for aggravated assault w…
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SCHEB, Judge.
Appellant was convicted of aggravated assault resulting from an occurrence on September 29, 1974. Although the maximum permissible sentence for the crime is five years1 appellant was placed on probation for six years.
Until 1974, Fla.Stat. § 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. But, Ch. 74-112, effective July 1, 1974, eliminated this proviso. We think, therefore, a court is now powerless to extend a period of probation beyond the maximum permissible sentence except as expressly provided in that statute.2
The power to place a defendant on probation for a period of time not to exceed the maximum sentence which may be imposed can be inferred, but since July 1, 1974, there no longer exists any express statutory basis for allowing a longer period of probation.3 There is validity to not allowing probation to extend beyond the period of maximum sentences. First, a penal statute must be strictly construed in favor of those against whom it would operate; and second, to infer that a court could extend probation beyond such a maximum permitted punishment would lead to unacceptable results. For although the period of probation imposed here was only one year beyond the maximum sentence, the absence of any limit raises the possibility that a judge could direct many years of probation even for a misdemeanor, a concept which has the potential to inject further disparities into the corrective process. We have examined appellant’s arguments relating to ineffective assistance of counsel, and admission into evidence of the weapon used in the assault, and find them to be without merit.
Accordingly, the judgment is affirmed, but we remand for the trial court to impose a new term of probation consistent with this opinion.
McNULTY, C. J., and HOBSON, J., concur. . See Fla.Stat. §§ 784.04 and 775.082(4) (d) (1973).
. Fla.Stat. § 948.04, as amended, provides that a defendant found guilty of a misdemeanor may be placed on probation for six months. This is in excess of the sixty-day maximum sentence for a misdemeanor of the second degree.
. Cf., Rice, Probation — When and How Long?, 49 Flá.Bar J. 324, 326 (June 1975).
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State v. Holmes, 360 So. 2d 380 (Fla. 1978)…or the particular offense charged. That decision is in accord with the decisions of the other district courts on this issue. See Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla. 2nd DCA 1976); Watts v. State, 328 So. 2d 223 (Fla. 2nd DCA 1976); Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977); McNulty v. State, 339 So. 2d 1155 (Fla. 1st DCA 1976), and Troiano v. State, 347 So. 2d 657 (Fla. 4th DCA 1977). In State v. Jones, supra, the case cited by petitioner for…
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Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)…degree felony is five years. By reimposing probation for three years following the revocation, the court improperly placed defendant on probation for a total of over six years. Blackburn v. State, 468 So. 2d 517 (Fla. 1st DCA 1985); Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). The trial court, in reimposing probation on February 7, 1990 for three years, indicated that defendant had not been under “a constructive period of supervision” since the preceding March, which was the month defendant received on…
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Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)…being placed on probation for an additional three years. We held in Kolovrat that the period of probation could not be extended beyond five years, the statutory maximum. Accord Blackburn v. State, 468 So. 2d 517 (Fla. 1st DCA 1985); Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). Otherwise, probation and likewise community control could be extended by a court ad infinitum beyond the statutory maximum incarceration each time probation or community control is revoked. We doubt the legislature intended such…
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