Williams v. State, No. 73-40.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPEARSON and HENDRY, JJ., and MELVIN, WOODROW M., Sr., Associate
Citation280 So.2d 518
PartiesRobert WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 73-40.
Decision Date10 July 1973

280 So.2d 518

Robert WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.

No. 73-40.

District Court of Appeal of Florida, Third District.

July 10, 1973.


280 So.2d 519

Phillip A. Hubbart Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Peter F. LaPorte, Asst. Atty. Gen., for appellee.

Before PEARSON and HENDRY, JJ., and MELVIN, WOODROW M., Sr., Associate Judge.

MELVIN, WOODROW M., Sr., Associate Judge.

The appellant herein pleaded guilty to breaking and entering a dwelling, resulting in an adjudication of guilty, a sentence to one year in the County jail and thereafter to be placed on probation for a period of two years. On November 2, 1972, subsequent to serving his jail time but within the probationary period, the appellant was charged with violation of conditions of probation. A hearing thereon resulted in the appellant being adjudged guilty of violating his probation; probation was revoked and the appellant was sentenced to two years in the State penitentiary.

There appears to be a fundamental jurisdictional problem on the face of this record i.e., the power of the trial judge to impose probation upon the appellant subsequent to the completion of serving the maximum term allowable by law in the County jail. As this is fundamental error apparent on the record, it is reviewable by this court sua sponte, notwithstanding the failure of the appellant to raise the issue in the trial court or before this court. Florio v. State ex rel. Epperson, Fla.App. 1960, 119 So.2d 305; Ware v. State, Fla.App. 1970, 231 So.2d 872.

It is apparent from the record that the trial court, having adjudicated the appellant guilty of a felony punishable by imprisonment in the State penitentiary, elected to sentence the appellant to the County jail pursuant to the provisions of § 922.051, Fla. Stat.1, F.S.A., which provides for a maximum sentence of one year. Dade County v. Baker, Fla. 1972, 265 So.2d 700; see also J. Carroll's dissent in Dade County v. Baker, Fla.App. 1972, 258 So.2d 511, 512. Thereupon, the trial court placed the appellant on probation pursuant to the authority of § 948.01(4), Fla. Stat., F.S.A., which reads as follows:

* * * * * *
"(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 upon probation upon completion of any specified period of such sentence. In such
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36 practice notes
  • State v. Jones, No. 45802
    • United States
    • United States State Supreme Court of Florida
    • January 14, 1976
    ...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 followe......
  • Streeter v. State, No. 81-1148
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1982
    ...(Fla.1949); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973), which is subject to our review ex mero motu, Lewis v. State, 154 Fla. 825, 19 So.2d 199 (1944), and which if patent on th......
  • Gonzalez v. State, No. 79-268
    • United States
    • Florida District Court of Appeals
    • January 13, 1981
    ...(Fla. 3d DCA 1979), and Butler v. State, 343 So.2d 93 (Fla. 3d DCA 1977) (sentence in excess of statutory maximum); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973) (probationary term after completion of maximum jail term). Such an error can be corrected on appeal or by a trial court in ......
  • Lewis v. State, No. 74--221
    • United States
    • Florida District Court of Appeals
    • August 9, 1974
    ...on the condition that he first spend ten months in the Orange County jail, was null and void. Appellant relies upon Williams v. State, 280 So.2d 518 (3d D.C.A. Fla.1973), and Page 541 subsequently mentioned cases for the proposition that the probation order was void. In Williams v. State, S......
  • Request a trial to view additional results
36 cases
  • State v. Jones, No. 45802
    • United States
    • United States State Supreme Court of Florida
    • January 14, 1976
    ...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 followe......
  • Streeter v. State, No. 81-1148
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 1982
    ...(Fla.1949); Robbins v. State, 413 So.2d 840 (Fla. 3d DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973), which is subject to our review ex mero motu, Lewis v. State, 154 Fla. 825, 19 So.2d 199 (1944), and which if patent on th......
  • Gonzalez v. State, No. 79-268
    • United States
    • Florida District Court of Appeals
    • January 13, 1981
    ...(Fla. 3d DCA 1979), and Butler v. State, 343 So.2d 93 (Fla. 3d DCA 1977) (sentence in excess of statutory maximum); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973) (probationary term after completion of maximum jail term). Such an error can be corrected on appeal or by a trial court in ......
  • Lewis v. State, No. 74--221
    • United States
    • Florida District Court of Appeals
    • August 9, 1974
    ...on the condition that he first spend ten months in the Orange County jail, was null and void. Appellant relies upon Williams v. State, 280 So.2d 518 (3d D.C.A. Fla.1973), and Page 541 subsequently mentioned cases for the proposition that the probation order was void. In Williams v. State, S......
  • Request a trial to view additional results

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