Bashlor v. State, 90-1127
| Citation | 586 So.2d 488 |
| Decision Date | 26 September 1991 |
| Docket Number | No. 90-1127,90-1127 |
| Parties | Charles BASHLOR, Appellant, v. STATE of Florida, Appellee. 586 So.2d 488, 16 Fla. L. Week. D2533 |
| Court | Court of Appeal of Florida (US) |
Nancy Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant appeals an order denying his motion to dismiss affidavit for violation of probation and the subsequent revocation of his probation returning him to jail to serve a life sentence. We affirm.
In 1951, appellant, then 16 years old, was convicted of first degree murder and sentenced to life in prison. Many years later, he challenged his conviction on the grounds that he requested and was denied appointed appellate counsel to prosecute his appeal. After a series of decisions, this court ruled he was entitled to a first appeal with assistance of counsel, but because of the lack of a trial transcript and the unavailability of a suitable alternative record, which foreclosed his appeal, his judgment and sentence was vacated and a new trial ordered. Bashlor v. Wainwright, 375 So.2d 871 (Fla. 1st DCA 1979), 374 So.2d 546 (Fla. 1st DCA 1979), and 369 So.2d 695 (Fla. 1st DCA 1978).
On remand, instead of retrial, appellant and the state negotiated a plea. Appellant pled guilty to first degree murder and was sentenced to life in prison, but his sentence was suspended after he was given credit for the 28 years and 73 days he had already spent in jail, and he was placed on probation for the remainder of his natural life. As part of the plea agreement, the state agreed to drop two escape charges. Unknown to appellant, and either unknown or unnoticed by the trial court, section 948.01(1), Florida Statutes (1951), prohibited the imposition of probation for a first degree murder offense.
A week after he was placed on probation, appellant was arrested in Savannah, Georgia, for rape, for which he was subsequently convicted and served approximately five and one-half years in jail. Shortly after his release on the rape charge, appellant was arrested for burglary and aggravated assault in Georgia. An affidavit for violation of probation was filed on August 19, 1986, and remained outstanding until appellant's return to Florida in 1989, after his release from a sentence imposed in Georgia for the burglary and aggravated assault.
Appellant moved to dismiss the affidavit of violation of probation contending that the probationary portion of his 1980 sentence was illegal. In support of his motion, the defendant also argued that the judgment and sentence should be vacated and set aside and he should be permitted to withdraw his plea of guilty. In response, the state argued that appellant was estopped to contest the probationary portion of his sentence because he freely and voluntarily entered the plea agreement, had other charges dropped and benefitted from being on probation for the last ten years. The trial court agreed ruling:
[A]lthough the imposition of a probationary sentence may have been improper, the Defendant freely, knowingly, and voluntarily entered into an agreement to accept a probationary sentence together with all of the terms and conditions which would apply thereto. The Defendant cannot now, facing a revocation hearing after ten years of probation, complain that the sentence imposed was illegal.
We concur in the reasoning of the trial court. Absent some jurisdictional flaw, Florida courts have repeatedly held that sentences imposed in violation of statutory requirements, which are to the benefit of the defendant and to which he agreed, may not...
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...court in Poore v. State, 531 So.2d 161 (Fla.1988). We agree, but nevertheless affirm as to this issue based upon Bashlor v. State, 586 So.2d 488 (Fla. 1st DCA1991), review denied, 598 So.2d 75 (Fla.1992), because Gaskins accepted the benefits of probation in the original sentence rather tha......
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Rhodes v. State
...complain that it was an illegal sentence"); Punta v. State, 806 So.2d 569, 570 (Fla.App. 3rd DCA 2002) (quoting Bashlor v. State, 586 So.2d 488 (Fla.App. 1st DCA 1991))("sentences which are imposed in violation of statutory requirements, which are to the benefit of the defendant and to whic......
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Jordan v. State, 91-3609
...may not thereafter complain that the sentence is illegal. Gaskins v. State, 607 So.2d 475 (Fla. 1st DCA 1992); Bashlor v. State, 586 So.2d 488 (Fla. 1st DCA 1991), rev. denied, 598 So.2d 75 (Fla.1992). In White, supra, and in this case, however, the appellants were not challenging the origi......
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Francois v. State
...DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). See also Warrington v. State, 660 So.2d 385 (Fla. 5th DCA 1995); Bashlor v. State, 586 So.2d 488 (Fla. 1st DCA 1991). We therefore conclude that defendant's challenge to the legality of the probationary term came too late, as it was not ra......