LEO STODDARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's attempt in 1976 to mitigate sentences by placing the appellant on probation was an unauthorized act, rendering the probation and subsequent revocations void.
[1] A trial court cannot grant probation as a form of mitigation of a lawful sentence.
[2] An order placing a defendant on probation, when the court lacks the authority to do so, is a nullity.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of multiple offenses and placed on probation. He violated probation multiple times. In 1976, the trial court attempted to miti…
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HOBSON, Acting Chief Judge.
On August 27, 1971, appellant was convicted of receiving and concealing stolen property and placed on probation for a period of three years. On December 6, 1971, appellant was convicted of entering without breaking a building other than a dwelling house with intent to commit a felony and placed on probation for a period of five years. On the same date appellant was found to be in violation of probation in the receiving and concealing case and his three-year probationary period was extended for a period of three years from December 6, 1971. The periods of probation in both cases were to run concurrently. On September 20, 1974, appellant violated his probation with respect to both offenses.
For reasons not clear from the record on appeal, the appellant was not found guilty of violating his probation on the entering without breaking crime until October 30, 1975, at which time he was sentenced for a term of five years with credit for time served. It was not until March 8,1976, that appellant was found guilty of violating his probation on the receiving and concealing crime and was sentenced to a period of five years to run concurrently with the entering without breaking sentence.
On March 9,1976, the trial court attempted to mitigate the sentences imposed on appellant on October 30,1975, and on March 8, 1976, by placing appellant on probation for six years.
In 1978, the appellant violated his probation on entering without breaking and was placed on probation for a period of seven years. He also violated his probation on receiving and concealing and was placed on probation for a period of five years. Subsequent probation violations occurred, and on July 13, 1979, warrants for appellant’s arrest for violation of probation on both charges were issued.
Appellant was brought before the court where he pled nolo contendere, reserving the right to challenge the court’s jurisdiction. On September 21, 1979, amended judgments and sentences were entered in both cases and the appellant was sentenced for a term of four years on each charge, to run consecutively.
In this appeal the appellant contends that the trial court in 1976 did not have the authority to nullify the sentences and place him on probation and, therefore, the order attempting to nullify the sentences is void, and later actions taken by the court with respect to that order, including the 1979 probation revocations and sentences are also void. We agree.
Florida Rule of Criminal Procedure 3.800(b) governed the trial court’s power to mitigate a lawful sentence in March, 1976. At that time the rule provided that a court could “mitigate” a sentence during the term in which it was imposed or within 60 days of sentencing if less than 60 days remain in the term. In the instant case, while the trial court had the authority to mitigate the appellant’s sentence, it exceeded that authority by placing him on probation, because the granting of probation does not constitute mitigation of a legal sentence. State v. Evans, 225 So. 2d 548 (Fla.3d DCA 1969); State v. Mancil, 354 So. 2d 1258 (Fla.2d DCA 1978).
In De La Paz v. State, 358 So. 2d 1093 (Fla.3d DCA 1978), the defendant was sentenced to four one-year sentences in April, 1971. In September, 1971, the court held a hearing on the defendant’s motion to mitigate these sentences and at that time placed the defendant on seven years probation. The defendant’s probation was subsequently revoked and he was sentenced to two five-year terms of imprisonment. On appeal, the court held that “the order placing the defendant on probation was a nullity. Accordingly, the sentence imposed for violation of probation is an illegal sentence,” and directed the trial court to reinstate the defendant’s original sentence.
This court has also held that where the order of the trial court mitigating an appellant’s sentence was void, the subsequent placing of the appellant on probation and the revocation of that probation are void. Petters v. State, 350 So. 2d 558 (Fla.2d DCA 1977); Solomon v. State, 341 So. 2d 537 (Fla.2d DCA 1977).
Therefore, in the instant case the trial court’s revocations of the appellant’s probation and the sentence of two consecutive four-year terms of imprisonment for the underlying offenses is void. Accordingly, the judgments and sentences are reversed. The original sentence entered on October 30, 1975, on the entering without breaking charge is reinstated and the original sentence entered on March 8, 1976, on the receiving and concealing crime is reinstated with credit given for any time served upon the sentence vacated by this opinion.
REVERSED and REMANDED.
SCHEB, C. J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)…ty to change a prison sentence into probation. The premise for the ruling was that the granting of probation did not constitute the reduction of a sentence as then authorized by Florida Rule of Criminal Procedure 3.800(b).1 Accord Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980). There is another reason why appellant’s probation order was invalid. Ordinarily, a trial judge loses jurisdiction to change a sentence under Florida Rule of Criminal Procedure 3.800(b) after sixty days. White v. State, 404 So. 2…
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Sweeting v. State, 390 So. 2d 773 (Fla. 3d DCA 1980)…SCHWARTZ, Judge (dissenting). I acknowledge both the force of the reasoning contained in Judge Baskin’s excellent opinion, and the fact that my conclusion is directly contrary to Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980). I would nevertheless hold that, inasmuch as the trial court acted within the time period provided by Fla.R.Crim.P. 3.800(b), it did not totally lack subject matter jurisdiction over Sweeting’s own motion to mitigate and that the…1 / 2
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State v. English, 400 So. 2d 570 (Fla. 2d DCA 1981)…d the federal approach holding that the granting of probation does not constitute the correction or reduction of a sentence. Cuneo v. State, 335 So. 2d 278 (Fla. 1976); Sweeting v. State, 390 So. 2d 773 (Fla. 3d DCA 1980); accord, Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980); see Whitfield v. United States, 401 F. 2d 480, 482 (9th Cir. 1968), cert. den., 393 U.S. 1026, 89 S.Ct. 630, 21 L.Ed. 570 (1969); Phillips v. United States, 212 F. 2d 327 (8th Cir. 1954). Accordingly, we grant the writ of certi…
Authorities Cited
- State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)
- State v. Carlie Nolan Mancil, Jr., 354 So. 2d 1258 (Fla. 2d DCA 1978)
- DE LA PAZ v. State, 358 So. 2d 1093 (Fla. 3d DCA 1978)
- Petters v. State, 350 So. 2d 558 (Fla. 2d DCA 1977)