SAMUEL PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillips appeals his probation revocation sentence after the trial court modified his original one-year sentence to probation one week later without his request. The court reversed, holding that the modification was void because it violated Florida Rule of Criminal Procedure 3.800 and was not made at the time of original sentencing, thereby invalidating the subsequent probation revocation.
The trial court lacked authority to revoke the probation because the modification of the original sentence was invalid and void. Since the probation order itself was void, the subsequent probation revocation and 30-month sentence were also void.
[1] A trial court lacks authority to revoke probation when the original sentence placing the defendant on probation was void.
[2] A trial court's modification of a legally imposed sentence by granting probation is invalid if not authorized by statute or rule at the time of original sentencing.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the sentence which originally placed Phillips on probation was void, the court had no authority to revoke his probation.”
Establishes the core holding that a void modification sentence invalidates any subsequent probation revocation.
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Join FLexlaw to unlock all legal intelligencePhillips received a one-year prison sentence on February 26, 1976. One week later, the trial court modified the sentence by placing Phillips on probat…
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PER CURIAM.
Phillips appeals a judgment and sentence dated November 28, 1979, imposing 30 months imprisonment for violation of the terms of his probation. Because the sentence which originally placed Phillips on probation was void, the court had no authority to revoke his probation. We therefore reverse the sentence now on appeal and remand with directions.
Phillips initially was given a one-year sentence on February 26, 1976. One week later, the trial court modified the sentence by placing the appellant on probation for three years. There is no evidence in the record that the appellant requested this modification.
The trial court’s modification of the original sentence was invalid. The modification was not permitted by Florida Rule Criminal Procedure 3.800(a) since the original sentence was legally imposed, nor was it authorized by Rule 3.800(b) because the granting of probation does not constitute a reduction of a sentence, Cuneo v. State, 335 So. 2d 278 (Fla.1976), and finally, it was not a suspended sentence pursuant to Section 948.01, Florida Statutes (1975), since it was not “done at the time of the original sentencing.” Solomon v. State, 341 So. 2d 537, 538 (Fla. 2d DCA 1977). Consequently, the change in the sentence placing the appellant on probation being void, the probation revocation and its corresponding sentence of 30 months’ imprisonment was also void. Solomon v. State, supra.
The state’s reliance on Smith v. Brown, 185 So. 732 (Fla.1938) and State v. Jones, 327 So. 2d 18 (Fla.1976), as authority to affirm the appealed order is misplaced. Smith provides that if a sentence of imprisonment is set aside at the request of a convicted defendant or at his insistence, the court may impose a new sentence upon the original adjudication of guilt. Here the record does not in any way indicate that Phillips requested or insisted on a modification of his original sentence.
State v. Jones, supra, is also distinguishable. The Jones court held at p. 25 that a trial court has jurisdiction to “revoke, reverse, or modify for cause” a probation order “at any time” the order is in effect and “impose any sentence which may have been originally imposed” pursuant to Sections 948.03 and 948.06(2), Florida Statutes. The Jones opinion did not involve the issue before us concerning the time frame in which a trial court can exercise its original jurisdiction to place a defendant on probation pursuant to Section 948.01, Florida Statutes.
Accordingly, the judgment and sentence are reversed, and the case remanded with directions to reinstate the original sentence and to allow appellant credit for all time served on that sentence.
ERVIN, SHAW and WENTWORTH, JJ., 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)…stitute a waiver to attack the later revocation. King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1197 (Fla.1980). Here, however, the order placing appellant on probation was void for lack of jurisdiction, Phillips v. State, 394 So. 2d 233 (Fla. 1st DCA 1981), and a defendant cannot confer jurisdiction by waiver. Sclafani v. County of Dade, 323 So. 2d 675 (Fla. 3d DCA 1975). The appellant’s other point on appeal has no merit. We reverse the consecutive five year prison sentences. Th…
Authorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Smith v. Brown, 135 Fla. 830 (Fla. 1939)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)
- Cuneo v. State, 335 So. 2d 278 (Fla. 1976)