Opinion

Gaskins v. State

  • 607 So. 2d 475
  • 1992 Fla. App. LEXIS 10606
Court
District Court of Appeal of Florida
Filed
Oct 12, 1992
Status
Published
Author
Kahn
On the bench
Ervin, Kahn, Opinions, Smith
Cited by
19 cases

Disapproved on other grounds by State v. Powell, 703 So. 2d 444 (1997)

“Existing case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”

How later courts described this case

  • “Existing case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of [the] sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”
  • prison sentence suspended upon successful completion of probation is a conditional suspended sentence which is not one of the alternatives articulated in Poore.

Written by the judges who cited it.

Later courts went against this

  • Disapproved on other grounds by State v. Powell, 703 So. 2d 444 (1997)

    607 So. 2d 475, 476 (Fla. 1st DCA 1992) (“Existing case law recognizes that once a defendant has enjoyed the benefits of probation without challenging the legality of sentence, the defendant is thereafter precluded from complaining that the sentence is illegal in an appeal from an order revoking probation.”), disapproved on other grounds, State v. Powell, 703 So. 2d 444
    Supreme Court of FloridaNov 20, 19977 citing opinionsother groundsRead it

The opinion

KAHN, Judge,

concurring.

I believe the sentence, resulting from a plea bargain, should be affirmed. Any other result would tend to encourage chaos. A defendant should not be able to freely and voluntarily agree to a plea and a sentence, and then, upon a probation violation perhaps years later, challenge the sentence as “illegal,” where the resulting term of incarceration, or combined terms of incarceration and probation, does not exceed the maximum allowable for the particular offense.

I also tend to believe that Gaskins’ sentence may be viewed as fitting the second sentencing alternative in Poore v. State, supra at 164 (“true” split sentence). Had Gaskins bargained for and received a ten-year sentence, with all but one month suspended, conditioned upon successful completion of nine years, eleven months probation, he could not complain. The instant sentence merely benefitted Gaskins by not requiring him to serve any initial prison time, and by requiring only five years probation, rather than the entire length of the suspended sentence. I nonetheless agree to certification because this is a perplexing area.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.