Freeman v. State, 75--243

Decision Date02 April 1976
Docket NumberNo. 75--243,75--243
Citation329 So.2d 413
PartiesEvelyn FREEMAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.

MAGER, Judge.

Upon due consideration of the briefs and record on appeal we are of the opinion that the legal issues raised in this appeal have been laid to rest by the Supreme Court in its recent decisions of State v. Jones, Fla., 327 So.2d 18, opinion filed January 14 1976 and Ivey v. State, Fla., 327 So.2d 219, opinion filed February 11, 1976.

These decisions essentially hold that trial courts have both the general and specific authority to impose a split sentence probation alternative, i.e. imprisonment as condition for probation; and that upon a finding that probation has been violated trial courts are authorized to impose any sentence that might have been originally imposed. State v. Jones, supra.

In the instant situation appellant, in 1971, was originally placed on probation with six months incarceration in the county jail as a condition of said probation for the offense of breaking and entering with intent to commit a felony. In 1974, upon finding that appellant violated the terms and conditions of probation the court imposed an 8-year sentence. No appeal was taken from that order; instead appellant filed filed a motion to vacate and set aside sentence challenging the split sentence probation alternative which motion was denied resulting in the instant appeal.

Although we conclude that the issues raised are without merit because of the above cited cases, we note that the record reflects that appellant was not given credit for time spent in the county jail pursuant to the split sentence probation order which credit is required under the aforementioned cases. Accordingly, the cause must be remanded for the purpose of giving appellant credit for time served in the county jail as a special condition of the initial probation sentence; in all other respects the judgment below is affirmed.

In passing we cannot help but observe what appears to this court to be the imposition of an unduly harsh sentence under the circumstances, i.e. eight years in the state prison. At the time of the commission of the offense and the entry of probation, appellant was...

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6 cases
  • State v. Burkman
    • United States
    • South Dakota Supreme Court
    • 11 Julio 1979
    ...it could have Originally imposed, 5 Wharton's Criminal Procedure § 2194; Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967); Freeman v. State, 329 So.2d 413 (Fla.App.1976); Tyler v. Warden, Maryland Penitentiary, 2 Md.App. 127, 233 A.2d 380 (1967); People v. Williams, 39 Mich.App. 402, 198 N.W......
  • Lewis v. State, 81-811
    • United States
    • Florida District Court of Appeals
    • 5 Agosto 1981
    ...1111. See, e. g., Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979); Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976).5 Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979).6 Freeman v. State, 32......
  • Villery v. Florida Parole and Probation Commission
    • United States
    • Florida Supreme Court
    • 30 Octubre 1980
    ...on a number of occasions by the district courts of appeal. See, e. g., Olcott v. State and Shead v. State, supra ; Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976). We decline, however, to adopt petitioner's suggestion that we construe a probation condition of incarceration as a sentence......
  • Rathburn v. State
    • United States
    • Florida District Court of Appeals
    • 28 Diciembre 1977
    ...imposed. Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977); Bienz v. State, 343 So.2d 913 (Fla. 4th DCA 1977); Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976); Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974). The record here does not reveal a substantial violation of probation. ......
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