Eaton v. State
Eaton v. State
Opinion of the Court
Defendant-appellant was charged by information with (1) uttering a forged instrument and (2) buying, receiving or concealing property, tried by jury and found guilty of both charges. Thereafter, a sentencing hearing was held and all agreed (the trial judge, prosecutor, and defense counsel) that since both charges arose out of the same transaction
Defendant-appellant contends that the trial court erred in revoking defendant’s probation as this probation was a nullity. We agree.
After a careful review of the record on appeal, it is evident that the entry of the order sentencing defendant to six months in the county jail on one count and two years probation on the other count was erroneous in that the trial judge and respective counsel correctly agreed that only one sentence could be imposed under the circumstances and thereupon the judge pronounced a single sentence of six months in the county jail to be followed by two years probation.
The trial judge having chosen to impose a sentence of six months in the county jail and further having. failed to suspend any part thereof, the probationary portion of the sentence was void ab initio and, therefore, the trial court lacked jurisdiction to revoke probation and impose a new sentence. See Hutchins v. State, Fla.App.1973, 286 So.2d 244; Cleveland v. State, Fla.App.1973, 287 So.2d 347; Kohn v. State, Fla.App.1974, 289 So.2d 48; Bryant v. State, Fla.App.1974, 290 So.2d 122; Reynolds v. State, Fla.App.1974, 293 So.2d 743.
Accordingly, the order revoking probation is reversed and the cause remanded to the trial court with directions to discharge the defendant-appellant as to the five year sentence which followed his revocation of probation.
Reversed and remanded.
. Defendant’s attempt to cash a stolen check at a package store.
. See Jackson v. State, Fla.App.1974, 293 So.2d 136.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.