Clem v. StateClem v. State
PER CURIAM.
Pursuant to the State‘s motion for rehearing, we have reconsidered at length these consolidated appeals from orders revoking probation, have heard oral argument a second time, and have concluded that our decision filed August 31, 1983, was erroneous. We hereby withdraw it and substitute the following in its stead.
Clarence L. Clem
On August 29, 1979, a jury found Clem guilty of robbery with a weapon. On December 28, 1979, the circuit court adjudicated him guilty and, without objection by the State, exercising its discretion under
On July 9, 1981, a probation officer of the Department of Corrections filed an affidavit setting forth that Clem had started serving a period of probation on April 1, 1981, and that he had violated the conditions of that probation by committing a robbery. After an evidentiary hearing on October 6, 1981, at which Clem stipulated he was on probation, the circuit court found Clem guilty of violating his probation. On October 26, 1981, the court sentenced Clem to serve sixty years in prison on the 1979 robbery. Clem‘s appeal, Case No. 81-2243, is from the order of revocation and from the sixty year sentence.
Edward Dorch
On April 1, 1980, Dorch entered a negotiated plea of guilty to manslaughter. The court entered a judgment of guilty and committed Dorch to the Department of Corrections for four years. After serving a “MINIMUM OF ONE (1) YEAR of said term, [he was to] be placed on probation for a period of TWO (2) YEARS.” A commitment order showed that the two year probation period was to be in a community control program. The Department of Corrections obtained custody of Dorch on April 11, 1980. On May 5, 1981, he was paroled by order of the Florida Parole and Probation Commission.
On February 12, 1982, a probation officer filed an affidavit that Dorch violated the conditions of his probation by, among other things, committing a burglary on February
On July 7, 1982, the Florida Parole and Probation Commission revoked his parole, effective February 1, 1982, on the manslaughter sentence.
The Dorch appeal, Case No. 82-1233, is from the circuit court order revoking probation and from the six year sentence.
The primary question before us is whether the circuit court had jurisdiction to revoke the appellants’ probation.
Appellants contend that the circuit court did not have jurisdiction to enter an order revoking probation because (a) the court did not have power to place them on probation; it had power only to place them in a community control program; and (b) as a result of
In our opinion the circuit court‘s improvident placement of appellants on probation rather than in a community control program has no effect on the result in this case; had they sought review before committing any violation, we would merely have directed modification of the order of probation to reflect that they were to be placed in a community control program as in Cruce v. State, 432 So.2d 734 (Fla. 4th DCA 1983). The circuit court‘s improvident action in the present cases had no prejudicial effect on appellants, since the crucial effect of the orders in these cases was to provide for appellants’ spending only a portion of their original sentences in prison. No prejudice could have accrued to the appellants because probation entails less rigorous supervision than community control. Any error here is mere error, not jurisdictional error, and harmless error at worst. Appellants may not complain of any error in being placed on probation rather than in a community control program because they accepted the benefits of such improvident placement. Cf. King v. State, 373 So.2d 78 (Fla.3d DCA 1979); Preston v. State, 411 So.2d 297 (Fla. 3d DCA 1982).
The jurisdictional issue arises from
The last issue for determination is the propriety of the sentences imposed on the appellants. As indicated above, the circuit
The State concedes that Clem‘s sixty year sentence is invalid, since robbery with a weapon is a first degree felony (See
Because the weight of authority is directly contrary to the State‘s position, we hereby adhere to that authority and hold that the court may impose no more than four years’ imprisonment on each appellant. See Ellis v. State, 436 So.2d 342 (Fla. 1st DCA 1983), and cases cited therein.
For the reasons set forth above we affirm the orders revoking probation, which is tantamount to revocation of community control, but reverse the sentences imposed and remand the causes for resentencing in accordance with the holding in Ellis v. State, supra.
This decision passes upon the following questions, which we certify to the Supreme Court of Florida to be of great public importance:
1. When a person is sentenced as a Youthful Offender pursuant to Chapter 958.05(2), Florida Statutes (1979), does the circuit court have jurisdiction to revoke the Community Control program status of that person?
2. If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender‘s Community Control Program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes?
DOWNEY, LETTS and GLICKSTEIN, JJ., concur.