ARTHUR FRANK MAYO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A Florida appellate court affirmed a probation revocation and five-year prison sentence imposed on a defendant who violated conditions of his probation, specifically by failing to pay court-ordered restitution and committing additional crimes. The court rejected the defendant's argument that the sentence should be limited to the original 18-month term promised in the 1972 plea agreement, finding that term became inoperative when the court exercised discretion to continue probation in 1974 rather than impose the original sentence.
The court held that the original 18-month sentence became inoperative when the court exercised its discretion in 1974 to continue probation rather than impose that sentence. The five-year sentence imposed in 1975 upon revocation for violations of the modified probation conditions was proper and within the court's authority.
[1] A court's written order controlling probation terms supersedes any oral statements made by the court at a hearing regarding those terms.
[2] A previously established sentence for probation violation becomes inoperative if the court, upon finding a violation, allows probation to continue without imposing the se…
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Join FLexlaw to unlock all legal intelligence“The .eighteen month sentence initially provided to be imposed if the probation condition of restitution was violated became inoperative, because the court did not impose any sentence in 1974 when it was established that such violation had occurred.”
Establishes that the original 18-month threatened sentence ceased to apply when the court exercised discretion to continue probation rather than impose it
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Join FLexlaw to unlock all legal intelligenceIn 1972, Mayo pleaded guilty to breaking and entering with intent to commit assault and battery under a plea agreement. Adjudication was withheld and …
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PER CURIAM.
This appeal is by the defendant below from a probation revocation order, and the sentence which was then imposed.
In 1972, in a plea bargain, the appellant pled guilty to breaking and entering with intent to commit assault and battery, a lesser offense of that with which he had been charged. Adjudication of guilt was withheld, and the defendant was placed on probation for five years. The order thereon required “restitution of medical expenses” [of the victim], and with reference to that condition stated: “If violate will receive 18 months State Prison”.
In 1974 the appellant was charged with violation of two conditions of probation, one being failure to make such restitution. On June 11,1974 the court entered an order finding such violation had occurred, and instead of sentencing the appellant to a prison term of 18 months as the 1972 order called for, the court did not impose a sentence, and continued the probation, amending the same with respect to the condition as to restitution, as follows: “The defendant is to pay ten dollars ($10.00) a week restitution until such time as the restitution is paid in full, failure to do so will result in a Prison term.” At the hearing held prior to the entry of that order the court had stated that failure to make restitution would result in a sentence of imprisonment for a period of two years. However, the written order did not so state.
A year later, in 1975, an affidavit of violation of probation was filed, charging that such restitution had not been made, and that the appellant had committed three acts of larceny. After hearing thereon the court revoked the probation, and sentenced the appellant to imprisonment for a term of five years.
Appellant contends the sentence should be reduced either to eighteen months or to two years. We cannot agree. The .eighteen month sentence initially provided to be imposed if the probation condition of restitution was violated became inoperative, because the court did not impose any sentence in 1974 when it was established that such violation had occurred. At that time, instead of sentencing the defendant, the court permitted the probation to continue. The subsequent violations were after the order entered in 1974 in which it was provided that failure of the defendant to comply with the restitution condition as there modified “will result in a Prison term”. At the time of that order there was no plea bargaining. To the extent that the order entered by the court in 1974 departed from something the court stated at the hearing, the former, that is the written order, controlled. The sentence ultimately entered upon revocation of probation was one that was proper under the law.
A second contention of error presented by the appellant, with reference to admission of certain evidence at the revocation hearing, has been considered and found to be without merit.
No reversible error having been shown, the judgment and sentence are affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Kord v. State, 361 So. 2d 800 (Fla. 3d DCA 1978)…ion to provide for a two year term of imprisonment if probation were subsequently revoked. In our opinion, the court was bound by its previous order pursuant to [*802] the. negotiated admission of the first violation of probation. See Mayo v. State, 346 So. 2d 98 (Fla. 3d DCA 1977); and compare Segarra v. State, 360 So. 2d 79 (Fla. 3d DCA 1978). Accordingly, we modify the five year sentence, and reduce it to two years. Affirmed as modified.…
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Pugh v. State, 379 So. 2d 398 (Fla. 4th DCA 1980)…ears on the basis of an explicit agreement among the defendant, the state, and the trial court that it would be a condition of appellant’s probation that should he violate probation he would be sentenced to two years imprisonment. In Mayo v. State, 346 So. 2d 98 (Fla. 3d DCA 1977) it was held that a trial court was not bound by an agreement originally made to limit appellant’s sentence to a term certain upon violation of a specific condition of probation, because later, when the defendant was found in viola…