Kirk v. State

Full title: MICHAEL KIRK, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jun 23, 1981

400 So. 2d 540 (Fla. Dist. Ct. App. 1981)

Opinion

No. 80-19.

June 23, 1981.

Appeal from the Circuit Court, Dade County, Ellen Morphonios Gable, J.

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).