
    Hosie SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 71-792.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1972.
    
      David B. Javits, of Engel & Halpern, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and David Luther Woodward, Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Judge.

Defendant-appellant Hosie Sanders was indicted for first degree murder. After entering a not guilty plea he subsequently reappeared before the Circuit Court of Collier County, which was then presided over by visiting Circuit Judge Charles R. Holley, for purposes of a plea bargaining session. After the “plea bargaining” proceeding, which was participated in by the defendant, his counsel, the prosecutor and the judge, the judge indicated that he would impose a lenient sentence of five years’ probation in the event of the entry of a plea of guilty to manslaughter. Such plea was thereupon entered and accepted by Judge Holley and a pre-sentence investigation ordered.

On October 22, 1971, the case came on for final disposition before the resident Circuit Judge, the Honorable Harold S. Smith. At that time Judge Smith placed appellant on probation for a period of twenty years, coupled with considerable jail time and other special conditions.

On November 22, 1971, the case was recalled up before Judge Smith who then changed the period of probation from twenty years to five years; but again the probationary period was subject to the exact conditions relating to jail time as was announced, on October 22, 1971 and again the other special conditions aforesaid were imposed. Specifically, the conditions referred to were:

“(k) Aforesaid [Sanders] is to spend 30 days per year in Collier County Jail during term of probation.
(l) Aforesaid shall spend each Saturday & Sunday in Collier County Jail during term of probation.
(m) Aforesaid shall pay $40 weekly child support to Mrs. Genoia Gordon or any other individual maintaining the step-children & true child from the relationship between deceased, Frances L. Gordon, & aforesaid during the term of probation. (Payment would be reduced as individual child becomes self supporting).”

The unusual conditions of probation imposed upon appellant by Judge Smith, particularly with respect to the jail time, were unquestionably harsher than those contemplated by the plea bargaining session at which the guilty plea was entered. In placing appellant on probation, Judge Smith did not give him advance warning of such harsher terms, nor did he afford appellant an opportunity to withdraw the plea of guilty as we mandated under similar circumstances in Barker v. State, Fla. App.1972, 259 So.2d 200. This was error.

We reverse the order herein and remand the cause for further proceedings consistent with this Court’s caveat in Barker v. State, supra.

Reversed and remanded.

PIERCE, C. J., concurs specially with opinion.

MANN, J., concurs with McNULTY, J., and filed opinion.

PIERCE, Chief Judge

(concurring specially) .

I concur in the decision to reverse the order appealed, but on a different ground than that expressed by the majority opinion. I think the essential question is whether or not the trial Judge had authority to impose intermittent jail confinement as a condition of probation.

Probation is purely a statutory creation and can only be exercised in accordance with the provisions of the statute. Archer v. Snook, 5th Cir. 1926, 10 F.2d 567; State v. Van Meter, 7 Ariz.App. 422, 1968, 440 P.2d 58; People v. Ledford, 173 Colo. 194, 1970, 477 P.2d 374.

Some states, including California, Delaware, New York, Michigan, Illinois and Idaho, have each enacted statutes authorizing probation with jail confinement as a condition. Also, in 1958 the federal probation statute was amended to allow for probation with confinement as a condition under special circumstances. Without such statutory authority, Courts in other jurisdictions have consistently held that imposition of confinement cannot be made a condition of probation. Van Meter, supra; Ledford, supra; People v. Robinson, 253 Mich. 507, 1931, 235 N.W. 236 (decision rendered prior to the legislative amendment to provide imprisonment in the county jail as a condition of probation. See People v. Sarnoff, 302 Mich. 266, 1942, 4 N.W.2d 544); 24 C.J.S., Criminal Law, § 1571(8), p. 475.

Florida’s probation statute, F.S. Chapter 948 F.S.A., does not contain authorization to impose confinement as a condition of probation. F.S. § 948.01(4) F.S.A. provides that the Court may impose a portion of a sentence to be served in the county jail and withhold the imposition of the remainder of the sentence, directing that the defendant be placed upon probation after serving such period as may be imposed by the Court. This section, however, is not applicable to a case where the imposition of the entire sentence is withheld and the defendant placed upon probation.

F.S. § 948.03 F.S.A. sets forth the general terms and conditions of probation and provides that the Court may add such other or others as it considers proper. Jail confinement is a very unusual condition of probation. If the legislature intended that confinement be a condition of probation, then it should, and probably would, have been enumerated among the specific terms and conditions, and not left to the Courts to read it into the present statute. I would recede from anything to the contrary expressed in State v. Williams, Fla.App.1970, 237 So.2d 69.

Appellant further contends that the payment of $40.00 per week for the support of his stepchildren and true child is disguised as a fine. This contention has no merit. F.S. § 948.03 F.S.A. specifically provides that the Court may include among the terms and conditions of probation the provision that the probationer shall support his legal dependents to the best of his ability.

MANN, Judge

(concurring specially).

I concur in Judge McNulty’s opinion. I would emphasize, however, that it is not necessary for us to reconsider Williams. The rationale of today’s decision is that incarceration is not normally within the contemplation of parties who bargain for probation.

Williams was a crew chief of an agricultural crew, and was ordered to spend one month per year — that month being one in which his services were most easily dispensable — in jail. He was thereby allowed to continue to earn a living, while at the same time experiencing a therapeutic loss of liberty. When we decided Williams it seemed to me, and still does, that the terms of probation were reasonable and practical. I would agree with my brother Pierce that the legislature should address itself to this matter and make specific provision for incarceration. For example, I see great merit in probationary conditions which would allow an offender to work during the week and spend his spare time in jail. We need to use some imagination in the adaptation of probation conditions to the particular case, and I would not recede from Williams if the question were before us. I think we all agree that it is not.  