JOHN EDWARD MCNULTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John McNulty appeals his sentence for cannabis possession, challenging whether a probationary period can exceed the maximum permissible jail sentence. The First District Court of Appeal holds that probation cannot extend beyond the maximum sentence allowed for the offense, even when a "split" sentence structure is used.
A probationary period may not exceed the maximum permissible sentence for the offense. The court rejected the state's argument that "split" sentences grant unlimited discretion over probation duration, holding instead that absent specific legislative authorization, trial courts cannot impose probation beyond the maximum sentence allowed.
[1] A probationary period may not exceed the maximum permissible sentence for the offense.
[2] The elimination of statutory limitations on probation terms does not grant courts unlimited discretion in setting probation duration.
Previewing 2 of 3 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“absent specific legislative grant, a trial court could not impose probation beyond the maximum permissible sentence”
Establishes the controlling legal principle that probation duration is limited by the maximum sentence for the offense
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Join FLexlaw to unlock all legal intelligenceMcNulty pleaded guilty to possession of less than five grams of cannabis. The trial court imposed a split sentence: one year imprisonment in Leon Coun…
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RAWLS, Acting Chief Judge.
Pursuant to a negotiated plea, McNulty was adjudicated guilty of possession of less than five grams of cannabis. The following sentence was imposed by the trial court:
“ . . that you be imprisoned by confinement in the Leon County Jail for a term of One (1) year. But at end of 6 months, sentence stayed & Probation 2 years.”
The máximum permissible sentence for the above offense is one year. The question then arises: What is the time limit on a probationary period? McNulty argues that the probationary time may not exceed the maximum permissible time that may be imposed for sentence. The state contends that because the instant sentence falls within the terminology of a “split” sentence, that the court has unlimited discretion as to the duration of probation.
After this appeal was filed, jurisdiction was temporarily relinquished to the trial court for its consideration of appellant’s motion to correct sentence, which alleged that the probationary period could not exceed the maximum one year time for jail sentence. In denying appellant’s motion, the trial court found that a defendant placed on probation pursuant to Florida Statute 948.01(1) is not subject to the pro bation limitations of Florida Statute 948.-04(1).
Prior to July 1, 1974, Florida Statute 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. However, this provision was eliminated by the Legislature. In Watts v. State, 328 So. 2d 223, the Second District Court of Appeal, after observing that penal statutes must be strictly construed, held that absent specific legislative grant, a trial court could not impose probation beyond the maximum permissible sentence. This view reaffirmed in Magnin v. State, 334 So. 2d 638 (2 Fla. App.1976). The state, in urging this court to reject the rationale of Watts, supra, argues that Sec. 948.04(1) removes the maximum limitation of probation by providing that: “Defendants found guilty of misdemeanors who are placed on probation shall be under supervision not to exceed six months unless otherwise specified by the court. . . . ”
We do not construe the foregoing provision to authorize a trial court to place a defendant who has been adjudicated guilty of a misdemeanor upon probation for an unlimited period of time. As stated in Watts, supra:
“ . . . [T]he 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.”
This cause is remanded to the trial court with directions that it impose a new term of probation consistent with this opinion.
MILLS and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Holmes, 360 So. 2d 380 (Fla. 1978)…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 conflict, this court addressed a related issue: the permissible period of incarceration following revocation o…
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Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)…t permissible period of probation allowable for the violation of a second degree misdemeanor is six months. Section 775.082(4)(b) and Section 948.04(1), Florida Statutes (1977); Alderman v. State, 356 So. 2d 928 (Fla. 2d DCA 1978); McNulty v. State, 339 So. 2d 1155 (Fla. 1st DCA 1976); Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). Neither in Alderman v. State, supra, nor in this opinion are we dealing with the right of a trial court to set a probationary period not exceeding the maximum allowable sentence…
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Smith v. State, 484 So. 2d 581 (Fla. 1986)…nt on probation for six months in a misdemeanor case." Id. at 930. See also Holloway v. State, 393 So. 2d 1185 (Fla. 2d DCA 1981); Corraliza v. State, 391 So. 2d 330 (Fla. 3d DCA 1980) review denied, 399 So. 2d 1141 (Fla.1981); cf. McNulty v. State, 339 So. 2d 1155 (Fla. 1st DCA 1976) (finding that the open-ended provision of 948.04(1) does not authorize probation for misdemeanors for an unlimited time). . In Chapter 85-288, section 15, Laws of Florida, the legislature amended section 948.03 and for the first…
Authorities Cited
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Magnin v. State, 334 So. 2d 638 (Fla. 2d DCA 1976)