Opinion
No. 79-811/T4-493.
October 15, 1980.
Appeal from the Circuit Court, Osceola County, Claude R. Edwards, J.
Richard L. Jorandby, Public Defender, and Frank B. Kessler, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.
We have examined the record and find competent substantial evidence to support appellant's conviction of delivery of phenobarbital and of conspiracy. State v. Dent, 322 So.2d 543 (Fla. 1975); State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976).
The trial court placed the appellant on probation with a condition that he serve fifty-one weeks in jail without gain time or furlough. Appellant cites Depson v. State, 363 So.2d 43 (Fla. 1st DCA 1978), as holding that the exclusion of gain time was improper. Apparently Depson involved a straight time term of years, whereas the confinement here was as a condition of probation. Adams v. State, 387 So.2d 498 (Fla. 5th DCA 1980), holds that confinement as a condition of probation is not a sentence within the meaning of the statute, section 951.21(1), Florida Statutes (1979), providing statutory gain time for a county prisoner.
The judgments and orders placing appellant on probation are
AFFIRMED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.