ALLEN Z. WOLFSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Wolfson appeals the denial of his motion for postconviction relief, challenging the validity of a probation order he later violated. The court held that the trial judge lacked jurisdiction to convert Wolfson's prison sentences to probation because the trial judge had lost sentencing authority when the convictions were on appeal.
The trial court lacked jurisdiction to enter the probation order for two independent reasons: (1) granting probation does not constitute a sentence reduction under Florida Rule of Criminal Procedure 3.800(b), and (2) the trial judge lost jurisdiction to modify sentences once an appeal was filed because the appeal removed jurisdiction from the trial court. A void judgment cannot be waived, so Wolfson may challenge the probation order despite having accepted it.
[1] A trial court lacks jurisdiction to convert a prison sentence into probation after the original sentence has been imposed.
[2] A trial court loses jurisdiction to modify a sentence sixty days after imposition, unless an appeal is pending.
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Join FLexlaw to unlock all legal intelligence“a trial judge had no authority to change a prison sentence into probation”
Establishes the controlling legal rule from State v. English that probation cannot be substituted for a prison sentence under Rule 3.800(b)
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Join FLexlaw to unlock all legal intelligenceOn March 17, 1978, Wolfson was sentenced to concurrent five-year prison terms for bank fraud and conspiracy. On October 6, 1978, while Wolfson's convi…
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GRIMES, Judge.
In this appeal from the denial of his motion for postconviction relief, appellant contends that the court was without jurisdiction to enter the probation order which he later violated.
On March 17, 1978, appellant was sentenced to concurrent five year prison terms for convictions of bank fraud and conspiracy to commit bank fraud. On October 6, 1978, the trial judge set aside these sentences and placed appellant on probation for consecutive five year terms. His probation was later revoked for illegal political contributions, and the court sentenced him to two consecutive terms of five years imprisonment. Appellant now contends that he could not be sentenced for a violation of probation because the court was without jurisdiction to originally place him on probation.
This case is controlled by State v. English, 400 So. 2d 570 (Fla. 2d DCA 1981), in which this court held that a trial judge had no authority 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. 2d 804 (Fla. 2d DCA 1981); Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977). If an appeal is taken, the rule extends the time until sixty days after receipt of the appellate mandate. However, the appeal itself removes jurisdiction from the trial judge, thereby eliminating his authority to change the sentence while the appeal is pending. Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982); see Smith v. State, 407 So. 2d 399 (Fla. 1st DCA 1981), pet. for rev. denied, 417 So. 2d 330 (Fla.1982). Since appellant’s convictions were on appeal to this court on the date the probation order was entered and we had not relinquished jurisdiction for any purpose, the trial judge did not have the authority at that time to make even a proper reduction of the sentences.
The state makes a persuasive argument that appellant should not be permitted to attack his sentences for violating probation after having accepted the benefits of being placed on probation in the first place. If the order placing appellant on probation were merely unlawful, his acceptance of the probation would constitute 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. The original concurrent five .year sentences are hereby reinstated. Appellant shall be entitled to credit for any jail time already served on the reinstated sentences as well as on the sentences now being vacated.
HOBSON, A.C.J., and SCHOONOVER, J., concur. . This rule was amended in 1980 to permit the substitution of probation for a prison sentence. The Florida Bar, In re Rules of Criminal Procedure, 389 So. 2d 610, 629 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)…tions. We find merit only to Dailey’s contention concerning the order of restitution and the accompanying probationary aspect of his sentence. Once the notice of appeal had been filed, the trial court was divested of jurisdiction. Wolfson v. State, 437 So. 2d 174 (Fla.2d DCA 1983). Therefore, the-court lacked jurisdiction to enter the amended sentence. Dailey’s original sentence, however, was incomplete. Therefore, on remand the trial court shall comply with section 775.089(l)(a) which, since 1984, has requ…
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Evans v. State, 647 So. 2d 180 (Fla. 1st DCA 1994)…jurisdiction upon a court where no jurisdiction exists. Sclafani v. County of Dade, 323 So. 2d 675 (Fla. 3d DCA 1975). See State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991); Wilson v. State, 487 So. 2d 1130 (Fla. 1st DCA 1986); Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983). “It is well settled that defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel, or consent since jurisdiction is established solely by general law.” White v. State, 404 So. 2d 804, 805 (Fla. 2d…
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Wilson v. State, 487 So. 2d 1130 (Fla. 1st DCA 1986)…stated in White, “it is well settled that a defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel, or consent since jurisdiction is established solely by general law.” 404 So. 2d at 805. See also Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983). Since we are reversing Wilson’s sentence, we need not reach his second and third points except, insofar as the third point is concerned, to direct that on remand should further discretionary action be required, the case be refer…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fla. Bar. in re Rules of Crim. Procedure, 389 So. 2d 610 (Fla. 1980)
- Daniels v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982)
- Shearund Duron King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)
- White v. State, 404 So. 2d 804 (Fla. 2d DCA 1981)
- Sclafani v. Cnty. OF Dade, 323 So. 2d 675 (Fla. 3d DCA 1975)
- Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980)
- Smith v. State, 407 So. 2d 399 (Fla. 1st DCA 1981)
- State v. English, 400 So. 2d 570 (Fla. 2d DCA 1981)
- Phillips v. State, 394 So. 2d 233 (Fla. 1st DCA 1981)