JUAN ABASCAL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Juan Abascal appeals the revocation of his probation and concurrent sentences of six months to five years imprisonment for three counts of issuing worthless checks. The appellate court affirmed the revocation and sentences, finding them lawful and rejecting Abascal's procedurally deficient challenge.
The sentences were lawful because upon probation revocation, a trial court may sentence a defendant for the same period as could have been originally imposed, and the underlying third-degree felonies were punishable by up to five years imprisonment. The second issue could not be addressed due to an incomplete appellate record.
[1] Upon revocation of probation, a trial court may sentence a defendant for the same period of years as could have been originally imposed.
[2] A defendant convicted of issuing worthless checks, a third-degree felony, may be punished by imprisonment not exceeding five years.
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“Upon the revocation of a defendant's probation, a trial court may sentence the defendant for the same period of years as the court could have originally imposed.”
Establishes the legal standard for sentencing upon probation revocation, which governed the lawfulness of the sentences imposed.
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Join FLexlaw to unlock all legal intelligenceAbascal was charged in three separate informations with issuing worthless checks. He entered pleas of nolo contendere, adjudications of guilt were wit…
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PER CURIAM.
Appellant, Juan Abascal, appeals from a revocation of probation order and concurrent sentences of six months to five years imprisonment.
Defendant was charged in three separate informations of issuing worthless checks on three occasions. After entry of pleas of nolo contendere, adjudications of guilt were withheld and defendant was placed on three years probation. As a condition of probation he was ordered to make full restitution. Thereafter, an affidavit of violation of probation was filed charging defendant with failure to comply with the restitution condition' in that he did not fulfill his commitment to make a $100 payment on April 2, 1976 and to continue payments in that amount each three weeks thereafter. A revocation of probation hearing was held and the trial judge revoked defendant’s probation. The judge then entered three judgments of conviction and concurrent sentences of six months to five years imprisonment.
Appellant first contends that the trial judge imposed unlawful sentences upon revoking his probation. We cannot agree.
Upon the revocation of a defendant’s probation, a trial court may sentence the defendant for the same period of years as the court could have originally imposed. State v. Jones, 327 So. 2d 18 (Fla.1976). Defendant was convicted of unlawfully obtaining services by means of issuing worthless checks, third degree felonies [Section 832.-05(2)(b), Florida Statutes (1975)] which are punishable for a term of imprisonment not exceeding five years [Section 775.082(3)(d), Florida Statutes (1975)]. Thus, the sentences were lawful. Defendant also argues that -the trial judge erred in not permitting him to present at the revocation of probation hearing as witnesses the victims of the crime and character witnesses.
A review of the record reveals that appellant has omitted the transcript or clerk’s minutes of the revocation hearing. The record being incomplete, we cannot consider this matter and must affirm the trial court. See Nelson v. State, 85 So. 2d 832 (Fla.1956); Williams v. State, 222 So. 2d 428 (Fla. 4th DCA 1969); Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969).
Affirmed.
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Taylor v. State, 436 So. 2d 124 (Fla. 3d DCA 1982)…, 422 So. 2d 911, 914-16 (Fla. 3d DCA 1982) (en banc) (Nesbitt, J., dissenting). First, it is plain that the panel decision cannot possibly create an intra-district conflict with Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977); Abascal v. State, 345 So. 2d 397 (Fla. 3d DCA 1977); Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969), as urged by the state in its motion for rehearing en banc, because these cases all involve a point of appellate practice which no longer represents good law today. They stan…
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Morris v. State, 356 So. 2d 44 (Fla. 2d DCA 1978)…has failed to provide this court with a transcript of the hearing on that motion. Consequently, since we must presume that a trial court’s order is correct unless the record otherwise demonstrates, we affirm appellant’s conviction. Abascal v. State, 345 So. 2d 397 (Fla. 3d DCA 1977); Savage v. State, 156 So. 2d 566 (Fla. 1st DCA 1963). BOARDMAN, C. J., and DANAHY, J., concur.…
Authorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Nelson v. State, 85 So. 2d 832 (Fla. 1956)
- Costantino v. State, 224 So. 2d 341 (Fla. 3d DCA 1969)
- BAL Harbour Club, Inc. v. Dade Cnty., 222 So. 2d 428 (Fla. 3d DCA 1969)
- Williams v. State, 222 So. 2d 428 (Fla. 4th DCA 1969)