JAMES L. MINNINGER A/K/A JAMES A. WILSON A/K/A ALFRED JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Minninger appeals his convictions and sentences for robbery, armed robbery, burglary, and drug possession. The appellate court found three sentencing errors: the trial court lacked jurisdiction to revoke expired probation, imposed sentences exceeding statutory maximums for third-degree felonies, and provided invalid reasons for departing from sentencing guidelines.
The trial court erred by attempting to revoke probation that had expired before revocation proceedings were initiated. The court also erred by imposing eight-year sentences for third-degree felonies with a statutory maximum of five years. The court's departure from guidelines based on Minninger's prior use of aliases was invalid because it was premised on unproven allegations of perjury, fraud, or obstruction of justice.
[1] A court is divested of jurisdiction over a probationer upon the expiration of the probationary period unless the processes for revocation or modification of probation wer…
[2] Filing an information charging a probationer with a crime during the probationary period is insufficient, by itself, to initiate the probation revocation process.
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“Upon expiration of the probationary period, the court is divested of all jurisdiction over the probationer unless prior to that time the processes of the court have been set in motion for revocation or modification of probation.”
Establishes the legal principle that probation revocation must be initiated before probation expires, or the court loses jurisdiction.
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Join FLexlaw to unlock all legal intelligenceMinninger was placed on three-year probation in June 1982 for a robbery offense. An affidavit alleging probation violation was not filed until June 19…
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[*759] FRANK, Judge.
After his probations were revoked, James Minninger was convicted of and sentenced for robbery, armed robbery, burglary, and the possession of cocaine and paraphernalia. He appeals from the sentences imposed for three reasons, each of which has merit.
First, the trial court erroneously “revoked” Minninger’s probation in Case No. 82-1134. He had been placed on three years probation in June of 1982 for a robbery offense. The affidavit alleging that Minninger had violated that probation was not filed, however, until June of 1986, four years later. Thus, his probation had expired and the court was without power to “revoke” it. “Upon expiration of the probationary period, the court is divested of all jurisdiction over the probationer unless pri-or to that time the processes of the court have been set in motion for revocation or modification of probation.” Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981). Although an information had been filed charging the appellant with a crime during his probationary period, that act alone was insufficient to initiate the revocation process.
Second, two of the offenses with which Minninger was charged — burglary of an occupied dwelling and possession of cocaine (Case Nos. 82-10725 and 84-11406)— were third degree felonies. The maximum penalty for each felony is five years imprisonment. § 775.082(3)(d), Fla.Stat. (1985). Although the appellant had been appropriately adjudicated guilty of third degree felonies, the trial court erred by imposing sentences of eight years for each offense, terms in excess of the statutory maximum.
Third, the trial court departed from the recommended guidelines range in imposing sentences in all four cases. His written reason is invalid. The trial court noted that Minninger had used aliases at previous sentencings and had thus possibly escaped stiffer punishments. This reasoning is tantamount to departure based on the ground that he either perjured himself, committed a fraud upon the sentencing courts, or engaged in the obstruction of justice — crimes for which no convictions were obtained. See Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985).
Based upon the foregoing, we remand this matter to the trial court with instructions to vacate the sentence imposed in Case No. 82-1134 and, in the remaining cases, to sentence Minninger within the guidelines. The guidelines sentence, of course, shall not exceed the the maximum penalty prescribed by law.
SCHEB, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 537 So. 2d 180 (Fla. 3d DCA 1989)…the probationer unless prior to that time the processes of the court have been set in motion for revocation or modification of probation.” Little v. State, 519 So. 2d 1139 (Fla. 2d DCA), review denied, 528 So. 2d 1182 (Fla.1988); Minninger v. State, 517 So. 2d 758 (Fla. 2d DCA 1987); Robinson v. State, 474 So. 2d 1274 (Fla. 3d DCA 1985); Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981); Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981). The filing of the new substantive robbery charge on October 25, 1985, a…
Authorities Cited
- Sloan v. State, 472 So. 2d 488 (Fla. 2d DCA 1985)
- Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981)