DONNIE THOMAS A/K/A DONNIE THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A person cannot be on parole and probation at the same time, and probation does not commence until parole expires.
Appellant was sentenced to prison with a suspended sentence and probation thereafter. He was paroled and an affidavit for violation of probation was f…
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GRIMES, Judge.
Appellant correctly contends that his probation could not be revoked for conduct occurring when he was not on probation.
On February 11, 1977, the court sentenced appellant to ninety-nine years in prison, with the sentence to be suspended after fifteen years and appellant to be on probation thereafter for life. Appellant was paroled in 1980. An affidavit for violation of probation was filed on February 12, 1982, predicated upon appellant’s conduct while he was on parole. The court found appellant guilty of violating probation and sentenced him to fifteen years imprisonment.
A person cannot be on parole and probation at the same time. See Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). In Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), this court explained that in the case of a prison sentence followed by probation where the prisoner is later paroled, his term of probation does not commence until the expiration of his parole.
Since appellant’s term of probation had not yet commenced at the time of his offending conduct, his probation was improperly revoked. Accordingly, we reverse the order of revocation. Nothing herein shall preclude appellant from attacking his original sentence as being in violation of Villery. See Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981).
OTT, C.J., and BOARDMAN, J., concur.
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Vendul Oliver Stafford v. State, 455 So. 2d 385 (Fla. 1984)…McDONALD, Justice. We have for review State v. Stafford, 437 So. 2d 232 (Fla. 5th DCA 1983), because of conflict with Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983), and Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982), review denied, 427 So. 2d 737 (Fla.1983). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution and approve Stafford. In 1977 the trial court s…
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Kirkman v. Louie L. Wainwright, 465 So. 2d 1262 (Fla. 5th DCA 1985)…PETITIONER RELEASED FROM CUSTODY. COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . The parties have not argued that the trial court improperly revoked petitioner’s probation (see Stafford v. State, 455 So. 2d 385 (Fla.1984); Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983)), and Kirkman did not appeal from that order. In any event, the ten year parole period has also virtually expired in this case, so that point would make no material difference. . The presumptive range under the Guidelines was thr…
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State v. Vendul Oliver Stafford, 437 So. 2d 232 (Fla. 5th DCA 1983)…e, 419 So. 2d 752 (Fla. 2d DCA 1982), wherein the Second District held that the defendant’s term of probation began when his parole expired, not when he was released on parole from prison. We note that in the more recent decision of Thomas v. State, 434 So. 2d 20 (Fla. 2d DCA 1983), the Second District has agreed with Stafford’s contention. Citing Villery and its earlier decision in Johnson, the Second District has held that probation cannot be revoked for misconduct while on parole and before the probation…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Johnson v. State, 419 So. 2d 752 (Fla. 2d DCA 1982)
- Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981)