WILLIAM KORD, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William Kord appeals the revocation of his probation and subsequent five-year prison sentence. The court affirms the revocation as supported by sufficient evidence but modifies the sentence to two years based on a prior negotiated agreement limiting the sentence upon probation revocation.
The court held that the evidence was sufficient to support revocation of probation and that the trial court acted within its discretion in revoking probation. However, the court held that the trial court was bound by its previous modification order, which specified a two-year prison term upon future probation violation, and therefore modified the sentence from five years to two years.
[1] Evidence is sufficient to support revocation of probation when a defendant materially violates its terms.
[2] A trial court is bound by its previous order modifying probation conditions when a defendant admits to a violation.
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Join FLexlaw to unlock all legal intelligence“If the aforesaid violates his probation, he is to receive two (2) years State Prison time.”
The written modification order entered by the trial court establishing the binding agreement that any future probation violation would result in exactly two years imprisonment
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Join FLexlaw to unlock all legal intelligenceKord pleaded guilty to uttering a forged instrument and was placed on probation for two years with sentence withheld. After an affidavit of probation …
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PER CURIAM.
This is an appeal by William Kord from an order of revocation of probation and a sentence to five years in the state penitentiary. The record reflects that Kord was charged by information with uttering a forged instrument and receiving stolen property. Kord pled guilty to the first charge, and the state abandoned the second one. The trial court adjudged Kord guilty of uttering a forged instrument, withheld sentence and placed him on probation for two years.
Subsequently, an affidavit of violation of probation was filed. A hearing was held during which the following colloquy took place between Kord, defense counsel and the court:
“MR. SMITH: Judge, we worked this case out where the Probation Officer is going to ask the Court to modify the probation to include in the order ‘Entering and successfully completing an alcohol program to be specified by the Probation Department.’
And also, a due notice to the Defendant should he violate any conditions of probation, he would get two years in the State Prison.
THE COURT: Do you understand that, Mr. Kord?
THE DEFENDANT: Yes, Your Hon-or. THE COURT: Very clear to you?
THE DEFENDANT: Yes, Your Hon-or. THE COURT: Do you know if you blow it it’s a very quick trip to the State Prison for two years?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. Probation so modified.”
At the conclusion of the hearing, the trial judge entered a written order of modification of probation, providing, among other things, that
“. . . .If the aforesaid violates his probation, he is to receive two (2) years State Prison time.”
Shortly after entry of the order of modification, another affidavit of violation of probation was filed. Following a hearing, the trial judge revoked Kord’s probation and imposed a sentence of five years in the state penitentiary.
Two points are raised on appeal. The first is that the evidence is insufficient to support revocation of probation. We do not agree. From the record, we find that the evidence was sufficient to sustain the trial court’s conclusion that Kord materially violated the terms of his probation; and to show that the trial court acted within the bounds of its discretion. Bernhardt v. State, 288 So. 2d 490, 501 (Fla.1974); Randolph v. State, 292 So. 2d 374 (Fla. 3d DCA 1974); Marshall v. State, 294 So. 2d 713, 714 (Fla. 3d DCA 1974); Adams v. State, 330 So. 2d 505 (Fla. 1st DCA 1976).
The second point is that the trial court erred in sentencing Kord to five years where it previously modified the conditions of probation 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 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Segarra, 388 So. 2d 1017 (Fla. 1980)…the original charge, this punishment cannot be in excess of the terms of the bargain upon which the defendant first entered a plea. Payne v. State, 372 So. 2d 152 (Fla.3d DCA 1979); Overman v. State, 368 So. 2d 434 (Fla.3d DCA 1979); Kord v. State, 361 So. 2d 800 (Fla.3d DCA 1978); Segarra v. State, 360 So. 2d 79 (Fla.3d DCA 1978). The fourth district court of appeal held to the contrary in Mulder v. State, 356 So. 2d 870 (Fla.4th DCA 1978). As between the two views, we opt for the position taken by the fou…
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Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985)…view an order revoking probation and sentencing the appellant to a total of ten years upon two convictions. The appellant urges error in that there was no willful showing of violation of probation terms. The record is to the contrary. Kord v. State, 361 So. 2d 800 (Fla. 3d DCA 1978). The appellant contends that the trial court cannot use the probation violation as a reason for aggravating his sentencing under the application guidelines. We do not agree. A trial court is justified in using the probation violat…
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Overman v. State, 368 So. 2d 434 (Fla. 3d DCA 1979)…ns predicated upon a maximum sentence of four years to which all parties agreed, the trial court erred in imposing the [*435] five year sentence upon revocation of his probation. See Segarra v. State, 360 So. 2d 79 (Fla. 3d DCA 1978); Kord v. State, 361 So. 2d 800 (Fla. 3d DCA 1978). Accordingly, we reduce the sentence to four years. We also considered the second point on appeal and find it is without merit. Affirmed as modified.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Randolph v. State, 292 So. 2d 374 (Fla. 3d DCA 1974)
- Segarra v. State, 360 So. 2d 79 (Fla. 3d DCA 1978)
- Adams v. State, 330 So. 2d 505 (Fla. 1st DCA 1976)
- Mayo v. State, 346 So. 2d 98 (Fla. 3d DCA 1977)
- Lunzo N. Marshall v. State, 294 So. 2d 713 (Fla. 3d DCA 1974)