DARRELL W. MAYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darrell Mays appealed his convictions for burglary of a dwelling and burglary of a structure, challenging the length of his probation sentences and a probation condition. The court affirmed the convictions but vacated and remanded the sentences due to an excessive probation term, an overbroad probation condition, and missing credit for time served.
The fifteen-year probation term for burglary of a structure is excessive and must be reduced to five years maximum on remand. The probation condition is overbroad as written because it would prohibit living with female relatives and must be modified to permit such living arrangements. The sentence must include a specific statement of credit for time served.
[1] A probationary term may not exceed the maximum possible sentence for a crime unless expressly provided by law.
[2] A burglary of a structure, absent an allegation of a human being's presence, constitutes a third-degree felony punishable by a maximum of five years imprisonment.
Previewing 2 of 4 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“Since a probationary term may not exceed the maximum possible sentence unless expressly provided by law, Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976), placing appellant on probation for fifteen years in case number 76-6103 (appeal number 77-273) was excessive”
Establishes the legal principle that probation terms are limited by the maximum sentence available for the crime
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Join FLexlaw to unlock all legal intelligenceMays pleaded guilty to burglary of a dwelling and burglary of a structure. He was sentenced to one year in a treatment center followed by five years p…
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SCHEB, Judge.
Appellant was charged by separate infor-mations with the crimes of burglary of a dwelling and burglary of a structure contrary to Section 810.02, Florida Statutes (1975). Upon his pleas of guilty he was adjudged guilty of each crime. He was sentenced to one year in a treatment center to be followed by five years probation with credit for time served for his conviction of burglary of a dwelling. He was placed on probation for fifteen years as a result of his conviction of burglary of the structure. The sentences were to run concurrently.
Appellant first contends that his being placed on probation for fifteen years for burglary of a structure is illegal, since he could have received only a maximum of five years in prison for the crime. We agree. The information in case number 76-6103 (appeal number 77-273) does not allege that there was a human being in the structure at the time appellant committed the crime. Such an allegation is essential to the charge where a structure, as opposed to a dwelling, is involved in order for the crime to be a second degree felony which carries a maximum punishment of fifteen years. Section 810.02(3), Florida Statutes (1975). Absent this allegation, the burglary charged is a third degree felony punishable by a maximum of five years imprisonment. Section 775.082(3)(d), Florida Statutes (1975). Since a probationary term may not exceed the maximum possible sentence unless expressly provided by law, Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976), placing appellant on probation for fifteen years in case number 76-6103 (appeal number 77-273) was excessive and this case must be remanded for entry of a probationary term not exceeding five years.
Appellant next contends that condition thirteen of his probation, prohibiting him from living with a member of the opposite sex unless married, is overbroad. Although this condition may be considered a layman’s formulation that appellant must comply with Chapter 798, Florida Statutes (1975) which proscribes fornication, the restriction is overbroad since its language would prohibit appellant from living with his mother or any other female relative of appellant. Hence, on remand, condition thirteen must be modified to permit appellant to live with his female relatives.
Finally, appellant points to the record which shows he was to receive credit for time spent in jail in case number 76-6102 (appeal number 77-263). However, the final judgment and sentence omits any reference to credit appellant is to receive for time served. On remand, the precise number of days of credit to which appellant is entitled must be stated. Smith v. State, 310 So. 2d 770 (Fla.2d DCA 1975).
Appellant’s convictions are affirmed. The sentence in each case is vacated and each cause is remanded for resentencing in accordance with this opinion. Appellant need not be present for this purpose.
GRIMES, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Rodriguez v. State, 378 So. 2d 7 (Fla. 2d DCA 1979)…ne the terms and conditions of probation . . ..” Section 948.03(1), Fla.Stat. (1977). As previously noted, this court has held “overbroad” a condition of probation which prohibited the probationer from living with any female relative. Mays v. State, 349 So. 2d 792 (Fla.2d DCA 1977). One of our sister courts has held a condition of probation that the probationer marry to be “beyond the trial court’s authority.” Michalow v. State, 362 So. 2d 456 (Fla.4th DCA 1978). The Florida Supreme Court has noted that a tri…1 / 2
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Williams v. State, 505 So. 2d 478 (Fla. 2d DCA 1987)…hich prohibited marriage and pregnancy violated fundamental constitutional rights of the probationer, and we instructed the trial court to strike those conditions. See Burchell v. State, 419 So. 2d 358 (Fla. 2d DCA 1982). Likewise, in Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977), we found that a condition stipulating that a probationer not live with a person of the opposite sex was unconstitutionally overbroad because it prevented the probationer from living with his mother or any other female relative. W…
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Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980)…purposes of probation. State v. Heath, 343 So. 2d 13 (Fla.1977); Coulson v. State, 342 So. 2d 1042, 1043 (Fla. 4th DCA 1977); see also Institution of Judicial Administration, Standards Relating to Probation, Section 3.2(b) (1970). In Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977), the Second District Court of Appeal struck a probation condition prohibiting probationer from living with any member of the opposite sex as overbroad. Similarly, this court held a probation condition directing probationer to “rec…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)