Martin v. State, 70--52
| Decision Date | 15 January 1971 |
| Docket Number | No. 70--52,70--52 |
| Citation | 243 So.2d 189 |
| Parties | Shadrick A. MARTIN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Wilfred H. Conrad, Casselberry, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and James M. Adams, Asst. Atty. Gen., West Palm Beach, for appellee.
This appeal from an order revoking probation and imposing sentence presents an issue which appears to be one of first impression in this state.
On March 4, 1969, appellant was convicted of the offense of shooting into a dwelling house, an offense which is punishable by both fine and imprisonment. (F.S. Sections 790.15 and 775.06, F.S.A.) The trial court sentenced appellant to pay a fine of $5,000 or upon failure to pay the fine to serve a term at hard labor in the Seminole County jail for a period of six months from the date thereof. Additionally the court imposed probation upon the appellant in accordance with an order of probation entered the same date. F.S. Section 948.01(1), F.S.A. The order of probation was for a term of seven years and contained the standard conditions substantially similar to those set forth in F.S. Section 948.03, F.S.A. The order also provided that the term of probation would begin upon appellant's release from the Seminole County jail, this latter provision apparently being in contemplation that appellant would not (or could not) pay the $5,000 fine.
Appellant did in fact serve the jail term of six months in lieu of paying the $5,000 fine, such term running from March 4, 1969 through September 3, 1969. While appellant was thus confined in the Seminole County jail he allegedly committed certain criminal acts which resulted in further criminal charges being filed against him. On November 13, 1969, affidavit for violation of probation was filed resulting in issuance of the statutory warrant of arrest. The warrant charged appellant with having violated the specific condition of the probation order which required him to 'live honorably', describing with specificity the criminal acts which he allegedly committed while confined in the Seminole County jail. These detailed charges included aiding and abetting a prisoner to escape from the Seminole County jail, committing a sexual assault upon a fellow prisoner, and committing an aggravated assault upon a fellow prisoner.
The warrant was served upon appellant and in due course he was brought before the trial court on December 19, 1969, at which time a full scale hearing was held on the alleged violations of the probation order, following which the court revoked the prior order of probation and sentenced appellant to ten years in the state penitentiary under the conviction of March 4, 1969, for violation of F.S. Section 790.19, F.S.A.
Appellant's sole point on this appeal is that any act of misconduct on his part while confined in the Seminole County jail could not be a violation of a probation condition because the term of probation did not commence until he was released from the Seminole County jail. The argument is ingenious and somewhat intriguing. Nonetheless, we are satisfied that the court's action in revoking probation and imposing sentence on appellant was not error.
F.S. section 948.01(3), F.S.A. provides for probation if it appears to the court that the defendant 'is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law.' It cannot be emphasized too strongly that a grant of probation rests within the broad discretion of the trial judge and is a matter of grace and not of right. See State ex rel. Roberts v. Cochran, Fla.1962, 140 So.2d 597; Roy v. State, Fla.App.1967, 207 So.2d 52; Pickman v. State, Fla...
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...See, e.g., United States v. Ross, 503 F.2d 940 (5th Cir. 1974); Wright v. United States, 315 A.2d 839 (D.C.App.1974); Martin v. State, 243 So.2d 189 (Fla.App.), cert. denied, 247 So.2d 63 (Fla.1971). Similarly, had appellant engaged in criminal activity prior to February 8, 1973 which of co......
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