MARY ANN CHRISTOPHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mary Ann Christopher appeals her conviction for grand theft in circuit court. The appellate court reversed because the information charged theft of merchandise valued at less than $100, which is a misdemeanor petit theft, placing the case outside the circuit court's jurisdiction unless properly amended to reflect a felony charge under the subsequent offender statute.
The trial court lacked jurisdiction because the information as filed charged only a misdemeanor, and any judgment or sentence rendered was void. Subject matter jurisdiction defects cannot be waived by a guilty plea and constitute fundamental error reviewable at any time, even for the first time on appeal.
[1] A circuit court lacks subject matter jurisdiction over a misdemeanor offense not arising from the same circumstances as a charged felony.
[2] A challenge to a court's subject matter jurisdiction is a claim of fundamental error that can be raised at any time, including for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“If the information charges only the misdemeanor, the circuit court does not have jurisdiction and thus any judgment or sentence rendered by it is void.”
Establishes the core jurisdictional principle that the circuit court cannot exercise jurisdiction over a misdemeanor petit theft charge standing alone.
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Join FLexlaw to unlock all legal intelligenceOn October 22, 1979, Christopher was charged by information with 'Grand Theft' but the charge actually involved merchandise valued at less than $100. …
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FRANK D. UPCHURCH, Jr., Judge.
Appellant appeals from a judgment and sentence for grand theft.
Appellant was charged on October 22, 1979 with an information labeled “Grand Theft,” but which charged the theft of merchandise of a value less than one hundred dollars. On November 27, 1979, the state filed a notice of intent to prosecute as a subsequent offender pursuant to section 812.014(2)(c), Florida Statutes (1979). On December 10, 1979, appellant tendered a plea to the offense of “attempted” grand theft. After advising appellant of the nature of the plea, the court accepted her plea, not as tendered to the offense of “attempted” grand theft, but to the offense of grand theft. On June 2, 1980, the court denied appellant’s motion for correction of an illegal sentence.
The question raised by this appeal is whether the trial court had jurisdiction of the offense charged in the information. We find that the trial court did not have jurisdiction and REVERSE.
A misdemeanor not arising out of the same circumstances as a felony which is also charged is cognizable only in county court. Art. V, §§ 5(b) and 6(b), Fla.Const.; §§ 26.012(2) and 34.01, Florida Statutes (1979). If the information charges only the misdemeanor, the circuit court does not have jurisdiction and thus any judgment or sentence rendered by it is void. Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978); Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So. 2d 78, 79 (Fla. 4th DCA 1977), cert. denied, 353 So. 2d 679 (Fla.1977); Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972), cert. dismissed, 283 So. 2d 99 (Fla.1973). The burden of properly invoking the court’s jurisdiction is on the state. See, e. g., Pope at 176.
The state contends that the use of the word “less” instead of “more” is a mere typographical error. The state notes that no challenge to the jurisdiction of the circuit court appears on the record. See Fuller v. State, 159 Fla. 200, 31 So. 2d 259 (1947); La Barbara v. State, 150 Fla. 675, 8 So. 2d 662 (1942). The question whether the court has subject matter jurisdiction involves a claim of fundamental error and can be raised at anytime, even for the first time on appeal. Waters; Dicaprio. Nor did appellant waive the defect by pleading guilty; the tender of a guilty plea does not foreclose the right to appeal the lack of subject matter jurisdiction. Robinson v. State, 373 So. 2d 898 (Fla.1979).
The state also argues that even if the information charges only a misdemeanor, events occurring after the filing of the information constituted a “tacit amendment” sufficient to give the court jurisdiction. However, the number of discrepancies and confusion in the plea proceedings negate the state’s contention that appellant consented, tacitly or otherwise, to any amendment of the pleadings. For example, the trial judge informed appellant that the charge against her was that of grand theft but then defined the charge as the theft of merchandise valued at less than $100. Defense counsel apparently advised appellant and then tendered on her behalf a plea of guilty to “attempted” grand theft, which is a non-existent crime, Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979), but the court accepted the plea of guilty to grand theft.
If the proper procedure is followed, a felony petit theft charge is sufficient to vest jurisdiction in the circuit court. In State v. Harris, 356 So. 2d 315 (Fla.1978), the supreme court upheld the constitutionality of section 812.021(3), Florida Statutes (1977) which provided that upon the third or subsequent conviction of petit larceny, the offender shall be guilty of a felony. Section 812.021(3) is identical to the present section 812.014(2)(c) with the exception that the word “theft” has replaced “larceny.” Had the state moved to amend the information as it should have .done, the substantive offense of felony petit theft would have vested jurisdiction in the circuit court. Not only did the state fail to amend the information, but the proceedings were lacking the safeguards that Harris mandates.
The judgment and sentence is REVERSED.
DAUKSCH, C. J., and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985)…ee, punishable as provided in ss. 775.082, 775.083, and 775.084. (Emphasis added.) . Section 812.021(3), Florida Statutes (1977) is "identical to the present Section 812.014(2)(c)” [*357] in all respects relevant to this case. Christopher v. State, 397 So. 2d 406, 407 (Fla. 5th DCA 1981). . Phillips v. State, 438 So. 2d 886 (Fla. 1st DCA 1983); Pickelsimer v. State, 440 So. 2d 47 (Fla. 1st DCA 1983); Donald v. State, 442 So. 2d 271 (Fla. 1st DCA 1983); O'Neal v. State, 444 So. 2d 1142 (Fla. 1st DCA 1984); N…
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Phillips v. State, 438 So. 2d 886 (Fla. 1st DCA 1983)…anguage of an [*888] information such as this is to charge only a petit theft, and is said to be a jurisdictional defect, not merely an imperfection in a felony charge that must be challenged by proper motion or else is waived. Christopher v. State, 397 So. 2d 406 (Fla. 5th DCA 1981) [information captioned “Grand Theft” under § 812.014(2)(c) ]; Brehm v. State, 427 So. 2d 825 (Fla. 3d DCA 1983) [information charging § 877.08 violation without alleging prior conviction for same offense]; see also State v. Black…1 / 2
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Booker v. State, 497 So. 2d 957 (Fla. 1st DCA 1986)…rial on solely misdemeanor charges could be held. Since the question of whether a court has subject matter jurisdiction involves a claim of fundamental error which can be raised at any time, even for the first time on appeal, Christopher v. State, 397 So. 2d 406 (Fla. 5th DCA 1981), we reverse the judgment and sentence entered on the misdemeanor charges. REVERSED. WIGGINTON and BARFIELD, JJ., concur.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- State v. Harris, 356 So. 2d 315 (Fla. 1978)
- Fletcher Fuller and Abner Fuller v. State, 159 Fla. 200 (Fla. 1947)
- State v. Pope, 283 So. 2d 99 (Fla. 1973)
- Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978)
- Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978)
- Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977)
- Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979)