Cervantes v. State

District Court of Appeal of Florida

Cervantes v. State

415 So. 2d 105, 1982 Fla. App. LEXIS 20373

CourtDistrict Court of Appeal of Florida

DecidedJune 15, 1982

DocketNo. 81-1178

StatusPublished

Cited by2 cases

This text of 415 So. 2d 105 (Cervantes v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cervantes v. State, 415 So. 2d 105, 1982 Fla. App. LEXIS 20373 (Fla. Ct. App. 1982).

Pincite

Opinion

PER CURIAM.

We find no error in the trial court’s denial of the motion to suppress below as, on this record, we cannot say that the arrest in this case was pretextual. State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971), approved, 273 So.2d 753 (Fla.1972).

We also find no error in the trial court’s order placing the defendant on probation for two offenses, one of which was a necessarily included offense in the other. First, the probationary order was not a general sentence condemned by Dorfman v. State, 351 So.2d 954 (Fla.1977), because, as our Supreme Court has held, a probationary order is not a sentence, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So.2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So.2d 69 (Fla. 5th DCA 1981); German v. State, 382 So.2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view, they mistakenly assume that a probationary order is a sentence.

Second, the probationary order is not invalid under Section 775.021(4), Florida Statutes (1981), because the defendant, as stated above, was not sentenced at all in this case, Villery v. Florida Parole & Probation Commission, supra, which, by definition, makes the above statute inapplicable.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

We find no error in the trial court’s denial of the motion to suppress below as, on this record, we cannot say that the arrest in this case was pretextual. State v. Holmes, 256 So.2d 32 (Fla. 2d DCA 1971), approved, 273 So.2d 753 (Fla.1972).

We also find no error in the trial court’s order placing the defendant on probation for two offenses, one of which was a necessarily included offense in the other. First, the probationary order was not a general sentence condemned by Dorfman v. State, 351 So.2d 954 (Fla.1977), because, as our Supreme Court has held, a probationary order is not a sentence, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), and can, therefore, be entered, as here, upon multiple convictions. We recognize that our holding here is in conflict with decisions rendered by two of our distinguished sister district courts of appeal, McCrae v. State, 400 So.2d 175 (Fla. 5th DCA 1981); Price v. State, 393 So.2d 69 (Fla. 5th DCA 1981); German v. State, 382 So.2d 146 (Fla. 4th DCA 1980); Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979) and regret that we cannot follow these decisions because, in our view, they mistakenly assume that a probationary order is a sentence.

Second, the probationary order is not invalid under Section 775.021(4), Florida Statutes (1981), because the defendant, as stated above, was not sentenced at all in this case, Villery v. Florida Parole & Probation Commission, supra, which, by definition, makes the above statute inapplicable.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

415 So. 2d 105, 1982 Fla. App. LEXIS 20373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cervantes-v-state-fladistctapp-1982.

Opinion

Related

Cite This Page — Counsel Stack