Hart v. State, 78-144
| Decision Date | 22 November 1978 |
| Docket Number | No. 78-144,78-144 |
| Citation | 364 So.2d 544 |
| Parties | Joseph Robert HART, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
W. J. Heffernan, Jr., of Lubet, Heffernan & Rabinowitz, Altamonte Springs, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne and Robert L. Bogen, Asst. Attys. Gen., West Palm Beach, for appellee.
This is an appeal from a conviction and sentence for a felony which was predicated upon a violation of probation. We affirm.
Appellant was convicted of two separate felonies for which he received consecutive sentences. The first sentence was for a period of five years incarceration, the last three and one-half years of which were to be suspended with the appellant being placed on probation. The second sentence was to five years probation, said sentence to run consecutive to the first sentence. Appellant served the one and one-half years confinement and commenced his probation under the first sentence. During this time appellant entered a guilty plea to a new felony occurring during his probation and this violation of the law was used as support for an affidavit charging a violation of the probation upon which appellant was placed, but which he had not commenced serving. Appellant's motion to dismiss the charges alleging a violation of probation was denied, whereupon he entered a plea of no contest to the violation, reserving his right to appeal the denial of his motion to dismiss. The court revoked the second probation and sentenced appellant to another period of incarceration. This appeal followed.
Appellant contends that as a matter of law the court could not revoke a sentence of probation which appellant had not commenced serving. This precise question was decided by this court in Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971) wherein we said:
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