Rose v. State, 77-2298
| Citation | 369 So.2d 1025 |
| Decision Date | 24 April 1979 |
| Docket Number | No. 77-2298,77-2298 |
| Parties | William Edwin ROSE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
Defendant, William Rose, appeals an order revoking his probation and sentencing him to 21/2 years in prison followed by five years probation.
On February 2, 1975 William Rose was charged by information (# 75-1320) with (I) possession of a controlled substance, ethchlorvynol, in violation of Section 893.13, Florida Statutes (1975); and (II) possession of a habit forming, toxic or harmful drug, glutethimide, without a valid prescription in violation of Section 500.151, Florida Statutes (1975). Subsequently, on April 11, 1975 Rose was charged by information (# 75-3858) with (I) possession of a controlled substance, ethchlorvynol (placidyl) in violation of Section 893.13, Florida Statutes (1975); and (II) possession of a controlled substance, ethchlorvynol, in a container other than that in which it was lawfully dispensed in violation of Section 893.13(2)(a)(7), Florida Statutes (1975). At a hearing on May 9 Rose changed his pleas from innocent to guilty as to both informations.
He was sentenced on information # 75-1320 as follows: as to Count I, six months in jail; and as to Count II, two years probation to commence at the expiration of the sentence in Count I. With respect to Counts I and II, in information # 75-3858 Rose was given the same sentences as in information # 75-1320, to be served concurrently. After his release from jail, an affidavit of violation of probation was filed against Rose on November 15, 1976. A revocation hearing was held and at the conclusion, the trial judge revoked Rose's probation. On information # 75-1320 (Count II) he was sentenced to five years probation with a term of 21/2 years imprisonment as a special condition of probation. On information # 75-3858 (Count II) he was sentenced to a one-year period of incarceration to run concurrently with the sentence imposed with respect to information # 75-1320.
Rose appeals the revocation of probation and sentences alleging that the court was without jurisdiction to revoke his probation because the maximum authorized probationary period (which was six months) had already expired at the time the revocation of probation affidavit had been filed. Rose argues that on May 9, 1975 he pled guilty to Counts I and II contained in information # 75-1320; and that Count II, possession of a habit forming drug without a prescription, is a misdemeanor of the second degree. 1 The maximum authorized probationary term for a misdemeanor of the second degree is six months. See Section 948.04, Florida Statutes (1975) and Alderman v. State, 356 So.2d 928 (Fla. 2d DCA 1978). The imposition of the two-year period of probation was unlawful and, therefore, the six-month maximum authorized probation as to Count II commenced after service of his six-month period of incarceration imposed by Count I. Rose then calculates that his probation...
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