State Concedes Error. Motion To Correct Illegal Sentence Granted. Drug Offender Probation Vacated

J.G. was charged with DUI manslaughter and similar related offense. She hired private counsel. Ultimately J.G. entered a plea bargain and was sentenced to prison followed by a term of drug offender probation.

J.G. contacted the Law Office of Robert David Malove and wanted her case to be reviewed to see if there were any clams that could be raised to attack her judgment and sentence. After a review of the file attorney Robert David Malove, a post-conviction specialist, noticed that J.G. was illegally sentenced to drug offender probation.

A Rule 3.800 (a) motion was filed and the motion argued that drug offender conditions of probation were restricted to those offenses enumerated in the drug offender probation statute. See, § 948.034, Fla. Stat. (2008). Neither of the crimes for which J.G. was charged and convicted are eligible for placement on drug offender probation.

The judge ordered the State to respond in 60-days and to show cause why the motion should not be granted. The Assistant State Attorney called the Law Offices of Robert David Malove and advised they would be conceding that an error occurred and agreeing that the drug offender probation must be stricken.

The trial court entered an order granting the Rule 3800 (a) motion and within the order the trial court stated that the placing of a person on probation with drug offender conditions for an offense not enumerated under § 948.034 amounts to an illegal sentence which is remediable pursuant to Rule 3.800(a). See, Reynolds v. State, 186 So. 3d 1120 (Fla. 5 th DCA 2016) (imposition of “standard probation” with drug offender probation conditions constitutes illegal sentence); Epperson v. State, 955 So. 2d 642 (Fla. 4th DCA 2007) (“The imposition of drug offender probation and related conditions, when the trial court lacks authority to do so, is cognizable in a rule 3.800(a) motion”); Parker v. State, 839 So. 2d 736 (Fla. 3d DCA 2003). The error is apparent from the face of the record, the motion is granted and the drug offender probation condition was stricken.

This case is a prime example of why you need an experienced post-conviction attorney working on your loved ones case.