Sanders v. State
| Decision Date | 10 November 1972 |
| Docket Number | No. 71--792,71--792 |
| Parties | Hosie SANDERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David B. Javits, of Engel & Halpern, Miami, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.
Defendant-appellant Hosie Sanders was indicted for first degree murder. After entering a not guilty plea he subsequently reappeared before the Circuit Court of Collier County, which was then presided over by Visiting Circuit Judge Charles R. Holley, for purposes of a plea bargaining session. After the 'plea bargaining' proceeding, which was participated in by the defendant, his counsel, the prosecutor and the judge, the judge indicated that he would impose a lenient sentence of five years' probation in the event of the entry of a plea of guilty to manslaughter. Such plea was thereupon entered and accepted by Judge Holley and a pre-sentence investigation ordered.
On October 22, 1971, the case came on for final disposition before the Resident Circuit Judge, the Honorable Harold S. Smith. At that time Judge Smith placed appellant on probation for a period of twenty years, Coupled with considerable jail time and other special conditions.
On November 22, 1971, the case was recalled up before Judge Smith who then changed the period of probation from twenty years to five years; but again the probationary period was subject to the exact conditions relating to jail time as was announced on October 22, 1971 and again the other special conditions aforesaid were imposed. Specifically, the conditions referred to were:
'(k) Aforesaid (Sanders) is to spend 30 days per year in Collier County Jail during term of probation.
(l) Aforesaid shall spend each Saturday & Sunday in Collier County Jail during term of probation.
(m) Aforesaid shall pay $40 weekly child support to Mrs. Genoia Gordon or any other individual maintaining the step-children & true child from the relationship between deceased, Frances L. Gordon, & aforesaid during the term of probation. (Payment would be reduced as individual child becomes self supporting).'
The unusual conditions of probation imposed upon appellant by Judge Smith, particularly with respect to the jail time, were unquestionably harsher than those contemplated by the plea bargaining session at which the guilty plea was entered. In placing appellant on probation, Judge Smith did not give him advance warning of such harsher terms, nor did he afford appellant an opportunity to withdraw the plea of guilty as we mandated under similar circumstances in Barker v. State, Fla.App.1972, 259 So.2d 200. This was error.
We reverse the order herein and remand the cause for further proceedings consistent with this Court's caveat in Barker v. State, supra.
Reversed and remanded.
PIERCE, C.J., concurs specially with opinion.
I concur in the decision to reverse the order appealed, but on a different ground than that expressed by the majority opinion. I think the essential question is whether or not the trial Judge had authority to impose intermittent jail confinement as a condition of probation.
Probation is purely a statutory creation and can only be exercised in accordance with the provisions of the statute. Archer v. Snook, 5th Cir. 1926, 10 F.2d 567; State v. Van Meter, 7 Ariz.App. 422, 1968, 440 P.2d 58; People v. Ledford, 173 Colo. 194, 1970, 477 P.2d 374.
Some states, including California, Delaware, New York, Michigan, Illinois and Idaho, have each enacted statutes authorizing probation with jail confinement as a condition. Also, in 1958 the federal probation statute was amended to allow for probation with confinement as a condition under special circumstances. Without such statutory authority, Courts in other jurisdictions have consistently held that imposition of confinement cannot be made a condition of probation. Van Meter, supra; Ledford, supra; People v. Robinson, 253 Mich. 507, 1931, 235 N.W. 236 ; 24 C.J.S., Criminal Law, § 1571(8), p. 475.
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