Evans v. State

544 So. 2d 1160 (1989)

Gregory Michael EVANS, Appellant,
v.
STATE of Florida, Appellee.

No. 88-1419.

District Court of Appeal of Florida, Fifth District.

June 15, 1989.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.

DAUKSCH, Judge.

This is an appeal from a sentence.

Appellant asserts he is entitled to be sentenced to prison rather than probation if he so requests and the sentence is a onecell departure as if he had violated probation. He cites Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986) in support of his assertion. We do not read those cases to say a defendant is so entitled and have said so in Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989). Although the state "has no quarrel with this court granting the relief sought by the appellant" we are firm in the position that no lawful sentence given by a sentencing judge will be disturbed on appeal. Sentencing is for trial court judges; not prosecutors, not defense attorneys and not appellate judges. The sentence is affirmed.

AFFIRMED.

SHARP, C.J., and ORFINGER, J., concur.