Holbert v. State

District Court of Appeal of Florida

Holbert v. State

747 So. 2d 1057, 2000 Fla. App. LEXIS 120, 2000 WL 8251

CourtDistrict Court of Appeal of Florida

DecidedJanuary 7, 2000

DocketNo. 5D99-1250

StatusPublished

Cited by1 cases

This text of 747 So. 2d 1057 (Holbert 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

Holbert v. State, 747 So. 2d 1057, 2000 Fla. App. LEXIS 120, 2000 WL 8251 (Fla. Ct. App. 2000).

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Opinion

ON MOTION FOR REHEARING

PER CURIAM.

Following the issuance of our decision in this case, Mr. Holbert filed a motion for rehearing. As authority for the motion, he cited to this court’s opinion in Fuller v. State, 401 So.2d 943 (Fla. 5th DCA 1981). On the authority of Fuller, we grant rehearing, withdraw our previous decision, and substitute the following in its place.

Mr. Holbert appeals his sentence which was imposed upon his conviction for violating his probation, arguing that he was entitled to be sentenced as a youthful of[1058]*1058fender under section 958.04 of the Florida Statutes (1997). Our review of the sentencing transcript reveals that this issue was raised before the trial court; however, in rejecting Mr. Holbert’s request it is unclear whether the trial court realized that, notwithstanding the fact that Mr. Holbert had not been previously sentenced as a youthful offender, the court had the authority upon re-sentencing to impose such a sentence. Accordingly, we reverse Mr. Holbert’s sentence and remand this matter to the trial court for reconsideration.

SENTENCE REVERSED; AND CAUSE REMANDED FOR RESEN-TENCING.

ANTOON, C.J., HARRIS and GRIFFIN, JJ., concur.

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ON MOTION FOR REHEARING

PER CURIAM.

Following the issuance of our decision in this case, Mr. Holbert filed a motion for rehearing. As authority for the motion, he cited to this court’s opinion in Fuller v. State, 401 So.2d 943 (Fla. 5th DCA 1981). On the authority of Fuller, we grant rehearing, withdraw our previous decision, and substitute the following in its place.

Mr. Holbert appeals his sentence which was imposed upon his conviction for violating his probation, arguing that he was entitled to be sentenced as a youthful of[1058]*1058fender under section 958.04 of the Florida Statutes (1997). Our review of the sentencing transcript reveals that this issue was raised before the trial court; however, in rejecting Mr. Holbert’s request it is unclear whether the trial court realized that, notwithstanding the fact that Mr. Holbert had not been previously sentenced as a youthful offender, the court had the authority upon re-sentencing to impose such a sentence. Accordingly, we reverse Mr. Holbert’s sentence and remand this matter to the trial court for reconsideration.

SENTENCE REVERSED; AND CAUSE REMANDED FOR RESEN-TENCING.

ANTOON, C.J., HARRIS and GRIFFIN, JJ., concur.

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Bluebook (online)

747 So. 2d 1057, 2000 Fla. App. LEXIS 120, 2000 WL 8251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holbert-v-state-fladistctapp-2000.

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