PHILLIP D. HEATHERLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenged a seven-year probation sentence for obtaining property by worthless check as excessive and unlawful. The court agreed that the probation term exceeded the maximum imprisonment period allowable by law and reversed that aspect, reducing it to five years, while affirming the various conditions of probation as reasonable.
The seven-year probation sentence is excessive and unlawful because the maximum imprisonment period under law for this crime is five years, and probation sentences cannot exceed the maximum imprisonment term. The probation is reduced to five years. All conditions of probation are affirmed as reasonable and within the trial court's discretion.
[1] A probationary term exceeding the statutory maximum imprisonment for the underlying offense is an excessive and unlawful sentence.
[2] A trial court may impose a jail term as a condition of probation, provided it is included within the probationary period.
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Join FLexlaw to unlock all legal intelligence“The amount of time which the court could have imprisoned Appellant under the law is five years... indicates this is clearly an excessive sentence.”
Establishes the legal principle that probation terms cannot exceed the maximum authorized imprisonment period for the offense.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to obtaining property by worthless check and was sentenced to seven years of probation with a condition that he serve one yea…
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DAUKSCH, Judge.
This is an appeal of a sentence of probation which the Appellant urges is excessive and unlawful. We agree and reverse. There is also an appeal concerning some of the terms of the probation imposed by the trial court which terms we affirm as being within the discretion of the trial court and proper under the circumstances.
The Appellant was placed on probation for a period of seven years after pleading guilty to the crime of obtaining property by worthless check. The amount of time which the court could have imprisoned Appellant under the law is five years. Our recent opinion of Holmes et al. v. State, Fla.App., 343 So. 2d 632, opinion issued February 11, 1977, which cites Moore v. State, 324 So. 2d 690 (Fla.1st DCA 1976); Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla.2d DCA 1976); State v. Jones, 327 So. 2d 18 (Fla.1976) indicates this is clearly an excessive sentence.
The trial court made as a condition of the probation of the Appellant that he serve one year in the county jail. This is included within the terms of his probation both as to time and conditions.
Another condition of his probation was that he not associate with a particular individual. The record is silent as to the court’s reason for this condition and we cannot therefore find that the court abused its discretion in that regard. We affirm as to that assignment of error. Another condition of probation was that the Appellant “promptly and truthfully answer all inquiries ... by the court or the Probation Supervisors . ” This is a reasonable and lawful condition of his probation and not a violation of his right to remain silent under the Constitution of the United States or the State of Florida and would not be one until such time as would require him to testify against himself if that ever occurs.
There are two remaining terms of his probation which are in the printed portion of this Final Order,
“(5) You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used unlawfully.”
and
“(13) You will not use intoxicants, nor possess any unlawful drugs; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used unlawfully.”
These terms are not inconsistent with each other nor are they unreasonable or unlawful.
We affirm all of the conditions of the probation and modify the sentence by reducing the term of probation from seven years to five years.
AFFIRMED AS MODIFIED.
ALDERMAN and ANSTÉ?AD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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State v. Holmes, 360 So. 2d 380 (Fla. 1978)…ccord 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 conflict, this court addressed a related issue: the per…
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Almond v. State, 350 So. 2d 810 (Fla. 4th DCA 1977)…Municipal Ordinances. (12)You will not associate with any organized or unorganized motorcycle groups.” The terms of probation exceeds the maximum allowed by two years. See Holmes v. State, 343 So. 2d 632 (Fla. 4th DCA 1977), and Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977). Additionally, Appellant contends and we agree that condition (10) is improper. The requirement that Appellant reside elsewhere than Central Florida is not sufficiently definite to advise Appellant of the limits of the restrictio…1 / 2
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Wood v. State, 378 So. 2d 110 (Fla. 5th DCA 1980)…al examination are not unduly harsh and restrictive, but are reasonably related to the offense and provide a standard of conduct essentially promoting this probationer’s rehabilitation in addition to protection of the public. See Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977). As for the search condition, the orders are valid insofar as they relate to searches by the probation supervisor. State v. Heath, 343 So. 2d 13 (Fla.1977), cert. denied, 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977); Grubbs…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Holmes v. State, 343 So. 2d 632 (Fla. 4th DCA 1977)
- Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976)
- Magnin v. State, 334 So. 2d 638 (Fla. 2d DCA 1976)