CHARLES D. WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that any proceedings subsequent to the state's filing of a nolle prosequi are a nullity, rendering the trial court without jurisdiction to impose or revoke probation on those charges.
[1] A trial court lacks jurisdiction to impose a sentence or revoke probation on charges that the state has formally nolle prosequied.
[2] Proceedings occurring subsequent to the filing of a nolle prosequi by the state are considered a nullity.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to aggravated assault and grand larceny, and the state announced it would nol pros three other charges. Subsequently, the cou…
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HOBSON, Acting Chief Judge.
Appellant Charles D. Walker was charged by separate informations with aggravated assault (Case No. 2439), grand larceny (Case No. 2743), receiving stolen property (Case No. 2016), delivery of cocaine (Case No. 2364), and breaking and entering an automobile (Case No. 3003). Appellant entered guilty pleas to the grand larceny and aggravated assault charges. At the sentencing hearing, the prosecutor announced that the state would nol pros the remaining three cases (Nos. 2016, 2364 and 3003). The court adjudged appellant guilty of aggravated assault and grand larceny and sentenced him to three years in prison on the assault charge and seven years probation on the grand larceny charge, the sentences to run concurrently.
Subsequently, appellant requested that his prison sentence on the assault charge be modified to one year in the county jail in consideration of his entering guilty pleas to the three charges which had been nol-prossed. The court placed appellant on probation on the three nol-prossed charges for a period of seven years on each charge, the sentences to run concurrently. The sentence on the assault charge was modified to seven years probation with the specified residency of one year in the county jail, that sentence to run concurrently with the probationary term imposed in the other cases.
Two years later, appellant was found guilty of violating probation in each case and the court revoked probation and sentenced him to five years in prison on each of the five charges.1 Appellant filed a motion with this court asking that we temporarily relinquish jurisdiction, alleging that the modification of sentence in the assault case was a nullity since it was done during a different term of court and more than 60 days after the original sentence. This court granted appellant’s motion and the circuit court set aside the five-year sentence on the aggravated assault case and reinstated the original three-year sentence.
Appellant argues that after the state announced that it would nol-pros the three charges, the trial court lacked subject matter jurisdiction to impose probation on these charges, and later to revoke probation on the same charges. We are asked to restore appellant to the position he occupied prior to the modification of the assault sentence. The ultimate result would be that 1) the original judgment and sentence of three years in Case No. 2439 (aggravated assault) would be reinstated; 2) that the judgment and sentence of five years in Case No. 2743 (grand larceny) would be left undisturbed; and 3) the judgments and sentences in the three remaining cases (Nos. 2016, 2364 and 3003) would be vacated and set aside. Appellant’s argument has merit.
The record reveals the following remarks by the prosecuting attorney, made after the acceptance of appellant’s guilty pleas to aggravated assault and grand larceny:
MR. HOOKER: Judge, three other cases, Case No. 74-2364 the State would nol pros this case. Case No. 74-3003, the State would nol pros that case. Case No. 74-2016, the State would nol pros that case. As we noted in State v. Braden, 375 So. 2d 49, 50 (Fla. 2d DCA 1979), the general rule is that “everything which occurs in a proceeding subsequent to the filing of a nolle prosse by the state is a nullity.” Following this rule, we hold that the imposition of probation on the .three nol-prossed charges were a nullity. Therefore, the trial court was without jurisdiction to revoke probation and impose a five-year sentence in Case No. 2016, receiving stolen property; Case No. 2364, delivery of cocaine, and Case No. 3003, breaking and entering of an automobile. In view of the above, we reverse the judgments and sentences in those cases. We affirm the judgment and three-year sentence in Case No. 2439, aggravated assault. We likewise affirm the judgment and five-year sentence in Case No. 2743; however, it is necessary to remand this case to the trial court in order that it may determine whether the sentence is to run consecutive or concurrent to Case No. 2439.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
OTT and RYDER, JJ., concur. . The sentences were imposed as follows:
No. 2016, receiving stolen property, 5 years.
No. 2364, delivery of cocaine, 5 years to run consecutive to No. 2016.
No. 2439, aggravated assault, 5 years to run consecutive to Nos. 2016 and 2364.
No. 2743, grand larceny, 5 years to run concurrent to No. 2016 (The judge orally imposed the sentence to run consecutive to No. 2016, but the final written order stated that the sentence would run concurrent to No. 2016.)
No. 3003, breaking and entering of an automobile, 5 years to run consecutive to No. 2743 and concurrent to No. 2364.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Casterline v. State, 703 So. 2d 1071 (Fla. 2d DCA 1997)…1); Carter v. State, 516 So. 2d 331 (Fla. 1st DCA 1987). Other probationary terms which have been described as "nullities” involve jurisdictional irregularities. See, e.g., Frederick v. State, 419 So. 2d 736 (Fla. 3d DCA 1982), and Walker v. State, 382 So. 2d 1231 (Fla. 2d DCA 1980) (vacating revocations of probation when the supervision was imposed for offenses for which the defendant never pleaded guilty nor was found guihy); Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979) (setting aside a revocation of pr…
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Jett v. State, 722 So. 2d 211 (Fla. 1st DCA 1998)…pril 26, 1994, on both Counts I and II. See Murguia v. State, 711 So. 2d 185 (Fla. 3d DCA 1998) (reversing on grounds the “court was without jurisdiction to impose a penalty on a charge that the State had previously nolle prossed”); Walker v. State, 382 So. 2d 1231 (Fla. 2d DCA 1980) (same). The judgment of conviction entered on September 19,1991, makes mention of Count I only. The contemporaneous written sentence also mentions Count I only. The record contains no transcript of any plea or trial on Count II.…
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Murguia v. State, 711 So. 2d 185 (Fla. 3d DCA 1998)…also properly concedes that the trial court erred in sentencing defendant for battery on a law enforcement officer. The court was without jurisdiction to impose a penalty on a charge that the State had previously nolle prossed. See Walker v. State, 382 So. 2d 1231 (Fla. 2d DCA 1980) (following revocation of probation, trial court is without jurisdiction to revoke probation and impose sentence on charge that State had nolle prossed). On remand, the trial court shall vacate both the adjudication of guilt on tha…
Authorities Cited
- State v. Braden, 375 So. 2d 49 (Fla. 2d DCA 1979)