“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
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.