Williams v. State, 73-40.
Decision Date | 10 July 1973 |
Docket Number | No. 73-40.,73-40. |
Citation | 280 So.2d 518 |
Parties | Robert WILLIAMS, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Phillip A. Hubbart Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Peter F. LaPorte, Asst. Atty. Gen., for appellee.
Before PEARSON and HENDRY, JJ., and MELVIN, WOODROW M., Sr., Associate Judge.
The appellant herein pleaded guilty to breaking and entering a dwelling, resulting in an adjudication of guilty, a sentence to one year in the County jail and thereafter to be placed on probation for a period of two years. On November 2, 1972, subsequent to serving his jail time but within the probationary period, the appellant was charged with violation of conditions of probation. A hearing thereon resulted in the appellant being adjudged guilty of violating his probation; probation was revoked and the appellant was sentenced to two years in the State penitentiary.
There appears to be a fundamental jurisdictional problem on the face of this record i.e., the power of the trial judge to impose probation upon the appellant subsequent to the completion of serving the maximum term allowable by law in the County jail. As this is fundamental error apparent on the record, it is reviewable by this court sua sponte, notwithstanding the failure of the appellant to raise the issue in the trial court or before this court. Florio v. State ex rel. Epperson, Fla.App. 1960, 119 So.2d 305; Ware v. State, Fla.App. 1970, 231 So.2d 872.
It is apparent from the record that the trial court, having adjudicated the appellant guilty of a felony punishable by imprisonment in the State penitentiary, elected to sentence the appellant to the County jail pursuant to the provisions of § 922.051, Fla. Stat.1, F.S.A., which provides for a maximum sentence of one year. Dade County v. Baker, Fla. 1972, 265 So.2d 700; see also J. Carroll's dissent in Dade County v. Baker, Fla.App. 1972, 258 So.2d 511, 512. Thereupon, the trial court placed the appellant on probation pursuant to the authority of § 948.01(4), Fla. Stat., F.S.A., which reads as follows:
The probation portion is a nullity and is void. The...
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