Bilyou v. State, 78-1816

Decision Date02 April 1980
Docket NumberNo. 78-1816,78-1816
PartiesHarry David BILYOU, Appellant, v. STATE of Florida, Appellee. /T4-193.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

NORRIS, WILLIAM A., Jr., Associate Judge.

Appellant pleaded nolo contendere to a charge of lewd assault upon a six year old female, a violation of section 800.04, Florida Statutes (1977). Pursuant to a plea bargain, the trial judge accepted the plea and agreed that appellant was to receive "a cap of ten years probation as a possible sentence." He was subsequently placed on eight years probation. Thereafter, following a hearing, his probation was revoked, he was adjudicated guilty and sentenced to fifteen years in the state prison with credit for time served. The maximum penalty of this offense is fifteen years in the state prison. The trial judge retained jurisdiction over the appellant for the first third of the sentence pursuant to the provision of section 947.16(3), Florida Statutes (Supp.1978).

In this appeal appellant contends that the fifteen year sentence is illegal because it is in excess of the ten years agreed to by the trial judge when he accepted appellant's nolo contendere plea, and that the trial judge improperly retained jurisdiction for the first third of appellant's sentence.

The essence of the plea bargain was that appellant was to be placed on probation for a term not to exceed ten years. This the trial judge did. The plea bargain did not contemplate a maximum sentence should the appellant's probation be subsequently revoked.

The Third District Court of Appeal has held that since the punishment received by a probation violator is imposed under the original charge, this punishment cannot be in excess of the bargain upon which the defendant first entered a plea. Payne v. State, 372 So.2d 152 (Fla. 3rd DCA 1979); Overman v. State, 368 So.2d 434 (Fla. 3rd DCA 1979); Kord v. State, 361 So.2d 800 (Fla. 3rd DCA 1978); Segarra v. State, 360 So.2d 79 (Fla. 3rd DCA 1978).

The Second and Fourth District Courts of Appeal have held to the contrary. Johnson v. State, 378 So.2d 335 (Fla. 2nd DCA 1980); Mulder v. State, 356 So.2d 870 (Fla. 4th DCA 1978).

Section 948.06(1), Florida Statutes (1979) provides, in part:

If such...

To continue reading

Request your trial
1 cases
  • Bilyou v. State
    • United States
    • United States State Supreme Court of Florida
    • September 24, 1981
    ...Acting Chief Justice. By petition for certiorari, we have for review a decision of the Fifth District Court of Appeal, Bilyou v. State, 381 So.2d 756 (Fla. 5th DCA 1980), which allegedly conflicts with prior decisions of another district court of appeal, Payne v. State, 372 So.2d 152 (Fla.3......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT