RICHARD A. GERI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Geri appeals his probation revocation and subsequent grand theft conviction, challenging the trial court's jurisdiction and the written order of revocation. The court affirms the judgment but directs correction of the revocation order to reflect only the violations actually proven.
The court affirms the judgment and sentence, rejecting the jurisdictional challenge as without merit, but directs correction of the written revocation order to conform it to the trial court's oral findings by removing the paragraphs addressing violations for which no evidence was presented.
[1] A defective information may deprive a court of subject matter jurisdiction to enter an order of probation.
[2] An information charging grand theft must allege the intent to permanently deprive the owner of property as an essential element of the crime.
Previewing 2 of 4 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“This contention is without merit. See Sinclair v. State, 46 So. 2d 453 (Fla.1950).”
Court's rejection of appellant's jurisdictional challenge based on an allegedly defective information.
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Join FLexlaw to unlock all legal intelligenceGeri had previously pled nolo contendere to grand theft and been placed on probation. He was charged with probation violations for allegedly committin…
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McCORD, Judge.
This appeal is from a judgment and sentence finding appellant guilty of probation violation and adjudging him guilty of grand theft, the charge for which he had previously pled nolo contendere and been placed on probation, and sentencing him for such offense. We affirm.
Appellant first contends that the trial court erred in revoking his probation because it lacked subject matter jurisdiction to enter the original order of probation; that the information charging him with grand theft was fatally defective in that it failed to allege that the taking was with the intent to permanently deprive the owner of his property; that such was an essential element of the crime, and, therefore, the circuit court lacked subject matter jurisdiction to enter the original order of probation. This contention is without merit. See Sinclair v. State, 46 So. 2d 453 (Fla.1950).
Appellant also contends that the trial court’s written order of revocation of probation is in error in that it does not conform to the trial court’s oral findings; that it finds violations for which there was no evidence presented at the violation of probation hearing. The amended affidavit for violation of probation alleged that appellant had violated Condition 5 of his probation by committing the offenses of burglary of a dwelling and battery upon Ricky Sapp. In addition, it charged appellant with violation of probation by committing a battery upon Mary Jeffries and by committing the offenses of introduction of narcotics into the county jail, possession of marijuana, and possession of quaaludes. At the probation violation hearing, the state introduced evidence only as to the alleged battery upon Ricky Sapp and the burglary.
The trial court, at the conclusion of the hearing, only found appellant guilty of those two offenses, but the subsequent order of revocation of probation finds that he violated Condition 5 (three paragraphs) in the amended affidavit. The first of the three paragraphs charged the burglary and the battery upon Sapp. The remaining two paragraphs relate to the other charges upon which no evidence was presented. The state agrees that this was a mistake and that it did not present evidence on the second and third paragraphs. This is an obvious error between the judge’s finding at the conclusion of the hearing and the written order which was later prepared.
The judgment and sentence are affirmed but with directions to correct the order of revocation of probation.
ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984)…ation presented at appellant’s trial in circuit court case No. CF82-3651. Thus, we remand this cause to the trial court to correct the written order by omitting these violations as the basis of appellant’s revocation of probation. See Geri v. State, 415 So. 2d 782 (Fla. 1st DCA 1982). Second, the trial court’s oral pronouncement at the revocation of probation hearing that appellant’s unlawful drinking at an unlicensed liquor house, which was in part the basis of appellant’s probation revocation, was error. T…
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Jackson v. State, 449 So. 2d 309 (Fla. 5th DCA 1984)…bation violation had occurred. However, since no evidence was adduced at the revocation hearing to support the alcohol consumption charge, that portion of the order must be stricken. Kemper v. State, 430 So. 2d 964 (Fla. 2d DCA 1983); Geri v. State, 415 So. 2d 782 (Fla. 1st DCA 1982). We are unable to determine whether the trial judge would have revoked the probation and imposed the sentence he did based solely on a violation of the first condition. Therefore, we reverse the order of revocation and remand th…
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Maralit v. State, 468 So. 2d 490 (Fla. 1st DCA 1985)…to appeal the constitutional issue sought to be raised he must move the trial court to allow him to withdraw the plea. While the lack of subject matter jurisdiction may be the subject of a direct appeal from a plea of nolo contendere, Geri v. State, 415 So. 2d 782 (Fla. 1st DCA 1982), when such claim is derivative of the constitutional issue for which there was no reservation of the right to appeal, we find that appellant should be required to withdraw the nolo plea prior to maintaining a direct appeal. Acco…
Authorities Cited
- Sinclair v. State, 46 So.2d 453 (Fla. 1950)