KENNETH GAMBLE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed robbery convictions but amended sentences by striking the mandatory three-year parole ineligibility provision and hard labor requirement, which the State conceded were incorrectly applied.
A mandatory three-year parole ineligibility provision and hard labor requirement in robbery sentences must be struck where the facts do not support their application under Florida law.
[1] A mandatory three-year parole ineligibility provision under Florida Statutes Section 775.087(2) is not applicable where the facts of the case do not support its impositio…
[2] Hard labor provisions in sentences must comply with applicable Florida law and cannot be imposed where not legally authorized.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of two counts of robbery and sentenced to ten years and five years imprisonment respectively, with provisions precluding parol…
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PER CURIAM.
On this appeal from conviction on two counts of robbery, for which the appellant was sentenced to imprisonment for ten years and five years, respectively, at hard labor, the appellant challenges provisions of the sentence entered on March 30, 1977 which expressly precluded eligibility for parole for three years [under Section 775.-087(2), Florida Statutes (1975)] and which provided for imprisonment at hard labor. In a motion filed by the State, as appellee, it is conceded that on the facts of the case the mandatory three-year sentence provision was not applicable, citing Earnest v. State, 351 So. 2d 957 (Fla.1977); Johnson v. State, 349 So. 2d 1190 (Fla.1977), and that it was incorrect for the sentence to provide for hard labor, citing Smith v. State, 354 So. 2d 477 (Fla. 3d DCA 1978), Case No. 77-72, opinion filed January 31, 1978; Wells v. State, 354 So. 2d 1221 (Fla.1978). [See also: Speller v. State, 305 So. 2d 231, 232 (Fla. 2d DCA 1974).]
Accordingly, the sentences thus imposed are hereby amended by striking therefrom the provision excluding eligibility for parole for three years and the provision that the imprisonment shall be at hard labor, as contained therein. The judgment is affirmed, and the sentences as thus amended are affirmed.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Speller v. State, 305 So. 2d 231 (Fla. 2d DCA 1974)
- Johnson v. State, 349 So. 2d 1190 (Fla. 1977)
- Mylon Wengrin v. State, 354 So. 2d 477 (Fla. 3d DCA 1978)
- Smith v. State, 354 So. 2d 477 (Fla. 3d DCA 1978)
- Wells v. State, 354 So. 2d 1221 (Fla. 3d DCA 1978)