State v. Jones
| Citation | 327 So.2d 18 |
| Decision Date | 14 January 1976 |
| Docket Number | No. 45802,45802 |
| Parties | STATE of Florida, Petitioner, v. Johnnie Lee JONES, Respondent. |
| Court | United States State Supreme Court of Florida |
Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for petitioner.
Phillp A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for respondent.
This is a petition for writ of certiorari to review the decision of the Third District Court of Appeal reported at 296 So.2d 519 (Fla.App.3d 1974), upon its certified question. The question involves probation which is preceded by a specified period of jail time and requires a construction of Sections 948.01(4), 948.03, and 948.06, Florida Statutes (1973). This is a subject upon which there have been varying constructions and interpretations by the four District Courts of Appeal. We have jurisdiction. 1
The certified question from the Third District is as follows:
For the reasons stated herein, we answer the question by holding that a defendant placed on probation pursuant to Section 948.01(4), Florida Statutes (1973), who subsequently violates that probation may be sentenced to imprisonment by the trial judge for the same period of years as the court could have originally imposed in accordance with Section 948.06, Florida Statutes (1973), without the necessity of establishing a term of sentence and withholding a part of it at the initial sentencing proceedings.
In the instant case the respondent-defendant pleaded guilty to (1) possession of heroin, (2) uttering a worthless check, and (3) uttering a forged instrument. The trial judge imposed separate sentences for each of these offenses, prescribing confinement in the Dade County jail for a period of one year to be followed by probation for five years, the sentences to be served concurrently. The trial court reconsidered the sentences in each case and reduced the period to be spent in the Dade County jail to the 85 days then served, retaining the five-year probation period. The defendant-respondent violated the probation within the designated five-year period by committing other felonies. His probation was revoked and the trial judge imposed three concurrent sentences of two years each in the state penitentiary with credit for 135 days served in the Dade County jail. The Third District Court affirmed the judgment but reversed the trial court's sentence, holding that 'the revocation of the probation operates to subject the defendant to the penalty of serving no more than the portion of the jail sentence which was withheld incident to placing him on probation.' The District Court decision restricted the maximum punishment for violating the probation to the previously imposed concurrent one-year county jail sentences which were withheld, less credit for the time served. This holding requires the trial judge to impose the total sentence and then withhold a portion of the sentence for use in the event violation of probation occurs. The decision also assumed the reconsideration did not disturb the balance of the one-year sentence but merely withheld its imposition. We do not agree with the District Court's construction of the statute or the result reached in the instant case.
The sole purpose of Chapter 948 is to authorize probation. The manner of imprisonment is considered elsewhere 2 and its consideration in Chapter 948 is only as an incident to probation or violation thereof. The chapter must be read as a whole. Section 948.01, Florida Statutes (1973), principally in issue in these proceedings, reads in its entirety as follows:
'948.01. When courts may place defendant on probation.--
'(1) Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty by the verdict of a jury or has entered a plea of guilty or a plea of nolo contendere or has been found guilty by the court trying the case without a jury, except for an offense punishable by death, may at a time to be determined by the court, either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of such defendant.
'(2) Prior to such hearing the court may refer the case to the parole and probation commission for investigation and recommendation. The court, upon such reference, shall direct the commission to make an investigation and report in writing at a specified time to the court upon the circumstances of the offense, the criminal record, the social history, and the present condition of defendant together with its recommendation.
'(3) If it appears to the court upon a hearing of the matter 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, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the supervision and control of the commission for the duration of such probation. And the said commission shall thereupon and thereafter, during the continuance of such probation, have the supervision and control of the defendant.
'(4) Whenever punishment by imprisonment in the county jail is prescribed, the court, in its discretion, may at the time of sentencing direct the defendant to be placed on probation upon completion of any specified period of such sentence.
In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.
'(5) In no case shall the imposition of sentence be suspended and the defendant thereupon placed on probation unless such defendant be placed under the custody of said commission.'
The Legislature in 1974 attempted to correct the confusion arising from varying District Court decisions by amending Section 948.01(4), Florida Statutes (1974), effective July 1, 1974, as follows:
(emphasis added)
Irrespective of this amendment, the issue raised by the prior law is still one of public interest because of defendants now on probation pursuant to its prior provisions.
Section 948.03, Florida Statutes (1973), prescribes the terms and conditions of probation and specifically authorizes the trial court to add such other conditions as it considers proper. It further grants to the trial judge the authority to rescind or modify at any time the terms and conditions of probation imposed by the court upon the probationer.
Section 948.06, Florida Statutes (1973), allows the trial judge upon revocation of probation to impose any sentence which might have been originally imposed before placing the defendant on probation.
There are three primary sentencing alternatives available to the trial judge. In order of their severity, they are as follows:
(1) Imprisonment. Sentencing of a defendant to the county jail or state prison.
(2) Probation and Imprisonment. A prescribed period of probation which is preceded by a period of incarceration, known generally as the split sentence alternative.
(3) Probation. A prescribed period of probation.
The use of probation which is preceded by a specific period of incarceration as an alternative means of punishment has been imposed by various methods in the trial courts. The District Courts have both approved and restricted these orders to the extent that it is difficult for the trial court to determine the proper procedure to use.
The Third District, in Williams v. State, 280 So.2d 518 (Fla.App.3d 1973), had before it a defendant who had pleaded guilty to a felony and had been sentenced to one year in the county jail followed by two years probation. During the probationary period, subsequent to serving the one year in the county jail, the defendant violated the conditions of probation. The trial judge revoked the probation and sentenced the defendant to two years in the state prison. The Third District held that there was no power in the trial judge to impose probation upon this defendant subsequent to the completion of serving his term in the county jail, and found the probationary portion of the...
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