Summary
holding illegal, inter alia, the placement of a violator of a city ordinance on probation where the city code authorized fines and jail terms but did not authorize placing a defendant on probation
Summary of this case from State v. MuoioOpinion
No. 83-355.
May 4, 1983.
Appeal from the Circuit Court, Polk County, Thomas M. Langston, J.
Jesse J. Bennett of Bennett Bennett, Winter Haven, for petitioner.
Quillian S. Yancey, State Atty., and Alfred C. Thullbery, Jr., Asst. State Atty., Bartow, for respondent.
This petition for writ of certiorari, brought to review a circuit court affirmance of a county court judgment finding petitioner guilty of violating a city ordinance, challenges both the judgment and sentence. We find that the judgment does not depart from the essential requirements of law, but the sentence was illegal.
The city ordinance in question provides for a maximum sentence of sixty days in jail and a $500.00 fine. Petitioner was sentenced to fifteen days in the county jail as a condition of six months' probation and ordered to pay a $547.00 fine. The fine on its face is in excess of the statutory maximum. Additionally, the state has confessed error as to the six months' probation in that probation is not authorized for violation of a municipal ordinance. Chapter 948, Florida Statutes (1981), only authorizes probation for a defendant where he has been found guilty of a criminal violation of state law and a municipal ordinance violation is not a criminal violation. See § 775.08, Fla. Stat. (1981). Moreover, the city code herein does not authorize placing a person on probation.
Accordingly, certiorari is denied in part, granted in part, and the cause remanded for resentencing in accordance with the above opinion.
BOARDMAN, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.