PATRICK KELLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
Appellant was convicted of a third degree felony and sentenced to 2V2 years in prison and 4V2 years on probation thereafter. The maximum period to which he could be sentenced is 5 years therefore the probation portion of his sentence is reduced from 41/2 years to 2V2 years. 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); Holmes v. State, 343 So. 2d 632 (Fla. 4th DCA 1977); Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977).
AFFIRMED AS MODIFIED.
DOWNEY, J., and BURNSTEIN, MIETTE K., Associate Judge, concur. DAUKSCH, J., concurs specially, with opinion.
DAUKSCH, Judge,
concurring specially:
I concur in the result but note this case has the same probation requirement I deplored in Pace v. State, (Fla. 4th DCA, Case No. 76-2210, Opinion filed June 24, 1977). See also dissent upon denial of rehearing, Opinion filed October 11, 1977.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…f eleven. In Brown v. State, 206 So. 2d 377 (Fla.1968), this Court identified four categories of lesser included offenses. Committing a lewd and lascivious act is not a necessarily lesser included (type 3) offense of sexual battery. Walker v. State, 351 So. 2d 382 (Fla. 4th DCA 1977). Nor is it a category 4 lesser included offense in the instant case because the information did not contain all the elements specified in section 800.04. See id.; Brown. It is also not “lesser” because both section 794.011(5) and…1 / 2
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RAY v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979)…s convicted of committing a lewd and lascivious act as proscribed by Section 800.04, Florida Statutes (1975). The commission of a lewd and lascivious act is not a category three necessarily lesser included offense of sexual battery. Walker v. State, 351 So. 2d 382 (Fla. 4th DCA 1977). The crime of which the appellant was convicted was not a category four lesser included offense because the information contained no allegation that the person upon whom the battery was inflicted was under the age of fourteen yea…
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State v. Carroll, 378 So. 2d 4 (Fla. 4th DCA 1979)…ded for appropriate prosecution, it certainly not being our intention that the appellant be discharged. AFFIRMED AND REMANDED. BERANEK, J., and CROSS, SPENCER C., Associate Judge, concur. . The problem was alluded to factually in Walker v. State, 351 So. 2d 382 (Fla. 4th DCA 1977) but was not the issue before the court.…
Previewing 3 of 6 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)
- Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977)
- 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)