Russell v. State

386 So. 2d 285, 1980 Fla. App. LEXIS 17234

Opinion

PER CURIAM.

This is an appeal from the denial of a post conviction motion filed pursuant to Rule 3.850, Fla.R.Crim.P. Appellant was placed on probation for a term of fifteen years with the special condition that he be incarcerated in the State prison for three years. He contends this “sentence” is illegal.

We adopt the holding and the rationale expressed in Olcott v. State, 378 So.2d 303 (Fla. 2nd DCA 1979) and reverse the “sentence” imposed upon appellant. We also agree with the Second District that a limitation upon the length of a prison term imposed as a condition of probation is a matter of great public importance and should be determined by the Florida Supreme Court consistent with the legislative scheme for parole as reflected in Chapter 947, Florida Statutes (1979).

The order placing the appellant on probation is vacated to the extent that it imposes a three year period of incarceration as a condition of probation and this cause is remanded for further consideration by the trial court consistent with the opinion in Olcott, supra.

MOORE, HERSEY and HURLEY, JJ., concur.