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Smith v. State

District Court of Appeal of Florida, Fourth District
Jan 17, 1996
666 So. 2d 990 (Fla. Dist. Ct. App. 1996)

Opinion

No. 94-2303.

January 17, 1996.

Appeal from the Circuit Court, Broward County, Barry E. Goldstein, J.

Richard L. Jorandby, Public Defender, and David McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Michelle A. Konig, Assistant Attorney General, West Palm Beach, for appellee.


As part of the appellant's plea agreement to charges of grand theft and other assorted lesser charges, the appellee agreed that he could be considered as an habitual offender if he violated community control or the terms of his probation. At sentencing, the court explained the consequences of habitualization to the appellant, including the loss of administrative gain time. Later, the appellant violated his probation, and the trial court sentenced the appellant as an habitual offender. In State v. Blackwell, 661 So.2d 282, 284 (Fla. 1995), the supreme court held that where the defendant was informed of the possibility and consequences of habitualization through the written plea agreement prior to the court's acceptance of the plea, the requirements of written notice in Ashley v. State, 614 So.2d 486 (Fla. 1993), were met. Here, the plea agreement informed the appellant of the possibility of habitualization, which the court further explained to the appellant prior to accepting his plea. We hold that this satisfies the requirements of Blackwell and Ashley. We remand, however, for entry of a written order of revocation of community control. While an order of revocation of probation was entered, it appears that the court failed to enter a similar order for revocation of community control.

Finally, the appellant contends that on count IV of the information he was given sixty days of probation which would have terminated prior to the filing of an affidavit of violation of probation on January 24, 1994. As the term of probation had expired, the court lacked jurisdiction to entertain an application of revocation. Clark v. State, 402 So.2d 43 (Fla. 4th DCA 1981). We therefore reverse the order revoking probation on count IV and order that it be vacated on remand.

GLICKSTEIN, WARNER and SHAHOOD, JJ., concur.


Summaries of

Smith v. State

District Court of Appeal of Florida, Fourth District
Jan 17, 1996
666 So. 2d 990 (Fla. Dist. Ct. App. 1996)
Case details for

Smith v. State

Case Details

Full title:BILLY RAY SMITH, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Jan 17, 1996

Citations

666 So. 2d 990 (Fla. Dist. Ct. App. 1996)