Tobin v. State

401 So. 2d 938

• Court: District Court of Appeal of Florida
• Decided: August 4, 1981
• Docket: AB-422
• Status: Published

Opinion

401 So.2d 938 (1981)

James Harry TOBIN, Appellant,
v.
STATE of Florida, Appellee.

No. AB-422.

District Court of Appeal of Florida, First District.

August 4, 1981.

James Harry Tobin, in pro. per.

Jim Smith, Atty. Gen., for appellee.

PER CURIAM.

Appellant seeks review of the lower court's denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We agree with the lower court's conclusion that appellant is not entitled to Rule 3.850 relief.

Appellant was convicted of several offenses contained in a multiple-count information, and sentenced to a total of 10 years imprisonment for some offenses, followed by 30 years probation for various other offenses. In Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1981) (revised opinion), the Florida Supreme Court ruled that the maximum period of incarceration which may be imposed as a condition of probation is up to, but not including, one year. The Villery court further indicated that this rule also applies to incarceration followed by a specified period of probation. However, we conclude that Villery applies only where incarceration and probation are imposed for the same offense,^[1] and does not prohibit incarceration for a year (or more) followed by a period of probation imposed for a separate offense, as in the present case.

The order appealed is affirmed.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

NOTES

[1] Note the Villery court's suggestion that the legislature "never contemplated the concurrent operation of parole and probation for the same offense... . [e.s.]