ANDREA BILLY SWIFT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Swift appealed the revocation of his probation and resulting eleven-year sentence following guilty pleas to three charges. The court affirmed probation revocation and sentencing for forgery and uttering a forged instrument but reversed the decision regarding leaving the scene of an accident, finding the probation term exceeded the statutory maximum and the revocation occurred after probation had legally expired.
The court held that probation terms cannot exceed the maximum sentence an offense carries, and probation can only be revoked for violations occurring during the probation period. The five-year probation for leaving the scene of an accident was invalid because the maximum sentence for that offense was one year, making the probation term one year and expiring December 2, 1977, before the alleged violations.
[1] A term of probation cannot exceed the maximum sentence which a court may impose for the underlying offense.
[2] A court may only revoke probation for violations that occur during the term of that probation.
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Join FLexlaw to unlock all legal intelligence“a term of probation cannot exceed the maximum sentence which a court may impose”
Establishes the first controlling legal principle that probation duration is limited by the statutory maximum for the underlying offense.
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Join FLexlaw to unlock all legal intelligenceAppellant pled guilty to three charges: leaving the scene of an accident involving an injury, forgery, and uttering a forged instrument. On December 2…
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BOARDMAN, Acting Chief Judge.
Appellant contends that the trial court erred in revoking his probation and in sentencing him to a total of eleven years in prison. We affirm in part and reverse in part.
Appellant pled guilty to three separate charges: leaving the scene of an accident involving an injury, forgery, and uttering a forged instrument. On December 2, 1976 the trial court placed him on three concurrent five-year terms of probation. Subsequently the court revoked his probation for violations of the conditions of probation allegedly committed by appellant on December 21, 1977 and January 11, 1978. Appellant was sentenced to a one-year term of imprisonment for leaving the scene of an accident, a five-year term for forgery, and a five-year term for uttering a forged instrument. This appeal timely followed.
Two established and accepted principles of law control this case. The first is that a term of probation cannot exceed the maximum sentence which a court may impose. Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976). The other is that the court may only revoke probation for violations which occur during the term of that probation. See generally Bouie v. State, 360 So. 2d 1142 (Fla.2d DCA 1978); Wrich v. State, 350 So. 2d 1114 (Fla.2d DCA 1977).
Applying these propositions to the facts here we hold that the trial court erred in placing appellant on probation for five years for leaving the scene of an accident. The maximum punishment which the court could have imposed under Section 316.027 Florida Statutes (1975) for leaving the scene of an accident was one year. Consequently, the term of probation for that offense could not exceed one year, and appellant’s probation therefore ended on December 2, 1977. As a result, we believe the court erred in revoking appellant’s probation for leaving the scene of an accident since the violations which served as a basis for the revocation occurred after December 2, 1977.
We have considered the remaining point raised by appellant, but we need not discuss it for it is clearly refuted by the record.
Accordingly, we affirm the judgments and sentences for forgery and uttering a forged instrument and reverse the judgment and sentence for leaving the scene of an accident. We remand the case to allow the trial court to set aside the judgment and sentence for leaving the scene of an accident.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH DIRECTIONS.
SCHEB and DANAHY, JJ., concur.
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Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)…maximum period of probation is limited only by the statutory maximum of the term of incarceration which could be imposed. See Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991); Twining v. State, 380 So. 2d 496 (Fla. 2d DCA 1980); Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978). In Crawford v. State, 567 So. 2d 428, 429 (Fla.1990) the Florida Supreme Court stated that section 948.01(5) [now 948.01(4)] means that “for any one offense, community control may be imposed for a maximum of two years.” Although…
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Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980)…gree. A misdemeanor in the first degree is punishable by a term of imprisonment not exceeding one year. § 775.-082(4)(a), Fla.Stat. (1975). Since a term of probation cannot exceed the maximum term of imprisonment provided by statute, Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978); Mays v. State, 349 So. 2d 792 (Fla. 2d DCA 1977), it is clear that the trial court was not empowered to place the defendant on probation for more than one year. The trial court’s judgment placing Peyton on probation for a term o…
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Dussault v. State, 578 So. 2d 430 (Fla. 5th DCA 1991)…annot be extended beyond the maximum period of statutorily prescribed incarceration, which, under section 812.13(2)(c), Florida Statutes, is five years for a third-degree felony. See Bono v. State, 553 So. 2d 293 (Fla. 1st DCA 1989); Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978); see also Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). Dussault is entitled to have the record corrected notwithstanding the imposition of concurrent fifteen-year probationary terms for several second-degree felonies. Se…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)
- Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)
- Wrich v. State, 350 So. 2d 1114 (Fla. 2d DCA 1977)