THOMAS EDWARD DEPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Edward Depson appeals the revocation of his probation, arguing the probationary period had expired and raising several sentencing issues. The First District Court of Appeal holds that the probationary period had not expired, but finds merit in three other contentions regarding inability-to-pay findings for supervision costs, improper withholding of gain time, and lack of jurisdiction for a post-appeal amended judgment.
The probationary period had not expired because credit for time served was to be credited only against the six-month incarceration period, not the entire two-year probationary term. The trial court must make an affirmative finding regarding an indigent defendant's ability to pay before revoking probation for failure to pay supervision costs. The trial court lacked jurisdiction to issue an amended judgment and sentence after the Notice of Appeal was filed.
[1] A probationary period does not expire if the defendant receives credit for time spent in confinement against the entire probationary term, rather than just a specific per…
[2] A court must make an affirmative finding of a defendant's ability to pay before revoking probation for failure to pay supervision costs.
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Join FLexlaw to unlock all legal intelligence“the court must make an affirmative finding that the indigent defendant's financial condition is such that payment can be made before entering a revocation on this ground”
Establishes the requirement for ability-to-pay findings in probation revocation cases based on failure to pay supervision costs.
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Join FLexlaw to unlock all legal intelligenceDepson was granted post-conviction relief and re-sentenced to two years of probation with a condition that he remain incarcerated for the first six mo…
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PER CURIAM.
Thomas Edward Depson appeals from a revocation of probation alleging first of all that the court had no jurisdiction because his probationary period had expired. Appellant was granted post-conviction relief and was re-sentenced. The order withheld adjudication of guilt and placed Depson on two (2) years probation with the special condition that he remain incarcerated for the first six (6) months of the probation. The order further specified that he was to be given credit “for any time spent in confinement in the county jail or in the custody of the Division of Corrections.” Appellant contends that the credit for the time spent in confinement (19 months, 20 days) was to be credited against the entire two year probationary period and not just against the six months jail time. We find no decisions supporting that position and we do not so hold. Thus, the appellant’s probationary period had not expired before revocation proceedings were initiated.
Three other points raised by appellant do have merit. First, one of the grounds for the revocation of probation was the failure to pay the cost of supervision authorized by Section 945.30, Florida Statutes (1977). The record reveals no evidence that the appellant had the ability to pay the costs of supervision. We hold that the court must make an affirmative finding that the indigent defendant’s financial condition is such that payment can be made before entering a revocation on this ground. Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). There were other grounds for the revocation which were not appealed. Thus, this finding does not directly affect the revocation.
Second, the trial court sentenced appellant to a straight time term of years and ordered that gain time be withheld. The state concedes that this was improper. Third, the trial court issued an amended judgment and sentence after the Notice of Appeal had been filed. The trial court no longer had jurisdiction once the case was on appeal. State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So. 2d 890 (Fla.1966).
We, hereby, remand for correction of the judgment and sentence and specifically direct that the provision requiring the withholding of gain time be stricken.
McCORD, C. J., and MILLS and BOYER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Lopez v. State, 722 So. 2d 936 (Fla. 4th DCA 1998)…served in jail prior to sentencing. This argument has been previously rejected based on the fact that community control is not the equivalent of incarceration. See In the Interest of B.A., 546 So. 2d 125, 125-26 (Fla. 1st DCA 1989); Depson v. State, 363 So. 2d 43, 44 (Fla. 1st DCA 1978); Smith v. State, 664 So. 2d 1076, 1076 (Fla. 2d DCA 1995); see also Chancey v. State, 614 So. 2d 18, 19 (Fla. 4th DCA 1993). KLEIN, J. and OWEN, WILLIAM C., Jr., Senior Judge, concur.…
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Valdes v. State, 469 So. 2d 868 (Fla. 3d DCA 1985)…as to parole is surplusage. There is no right to parole when you are sentenced under the sentencing guidelines of 1983. See Section 921.-001(8), Florida Statutes (1983). The trial court is without the authority to prevent gain time. Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978); Curry v. Wainwright, 422 So. 2d 1029 (Fla. 1st DCA 1982). [*869] Therefore we modify the sentence by striking all reference to parole and gain time. Affirmed as modified.…
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Smith v. State, 373 So. 2d 76 (Fla. 3d DCA 1979)…ingly, that portion of the order appealed revoking appellant’s probation on this ground is reversed. See, e. g., Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978); Depson v. State, 363 So. 2d 43 (Fla. 1st DCA 1978); and Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). We reiterate that the ground of appellant’s failure to report to T.A.S.C., which was required as a condition of her probation, was a sufficient basis to support- the tria…
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
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- State of Fla. ex rel. Earl Faircloth v. The Dist. Court OF Appeal, 187 So. 2d 890 (Fla. 1966)