Kirk v. State

400 So. 2d 540

Opinion

400 So.2d 540 (1981)

Michael KIRK, Appellant,
v.
The STATE of Florida, Appellee.

No. 80-19.

District Court of Appeal of Florida, Third District.

June 23, 1981.

Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

Before HUBBART, C.J., and BARKDULL and HENDRY, JJ.

PER CURIAM.

The order revoking the appellant's probation is affirmed upon a holding that (a) the evidence adduced below at the probation revocation hearing was sufficient to satisfy the conscience of the court that the appellant had violated his probation by committing an attempted burglary, see e.g., Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA), cert. denied, 300 So.2d 901 (Fla. 1974); and (b) the record presented upon appeal does not reflect error in the trial court's failure to sentence the appellant under the Youth Offender Act — although the affirmance here is without prejudice to the appellant to seek post-conviction relief in the trial court under Fla.R. Crim.P. 3.850 on this issue. See e.g., Cannon v. State, 384 So.2d 970 (Fla. 3d DCA 1980).