SCOTT G. PURVIS, PETITIONER,
v.
THE HONORABLE HUBERT R. LINDSEY, CIRCUIT COURT JUDGE OF THE FIFTEENTH JUDICIAL CIRCUIT EX REL. STATE OF FLORIDA, RESPONDENT
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Petitioner seeks habeas corpus relief, arguing he was illegally detained on probation because the trial court lacked jurisdiction to impose probation exceeding six months for a second-degree misdemeanor. The court granted the petition, finding that a defendant convicted of a second-degree misdemeanor punishable by a maximum of 60 days cannot be placed on probation for more than six months.
The court held that it is error to place a defendant on probation for more than six months for a second-degree misdemeanor punishable by a maximum of 60 days, and that a trial court lacks jurisdiction to entertain a violation of probation hearing when the underlying probation sentence exceeds the statutory limit.
[1] A trial court errs in placing a defendant on probation for more than six months for a second degree misdemeanor punishable by a maximum of sixty days.
[2] A court lacks jurisdiction to entertain a probation revocation hearing if appropriate steps to revoke or modify probation were not taken during the probationary term.
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Join FLexlaw to unlock all legal intelligence“it is error to place a defendant on probation for more than six months for a second degree misdemeanor which is punishable by a maximum term of sixty days”
Establishes the core legal principle that probation duration for second-degree misdemeanors is statutorily limited to six months.
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Join FLexlaw to unlock all legal intelligencePetitioner pled guilty to a second-degree misdemeanor punishable by a maximum of 60 days in jail and was placed on one year's probation as part of a p…
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PER CURIAM.
Petitioner has filed a petition for writ of habeas corpus, contending that he is being illegally detained on probation and that the trial court lacks jurisdiction to proceed with a violation of probation hearing.
Petitioner pled guilty to a second degree misdemeanor punishable by a maximum of 60 days in jail. See § 322.212(6), Fla.Stat. (1989); § 775.082(4)(b), Fla.Stat. (1989). In accordance with a plea agreement he was placed on one year’s probation. More than six months after he was placed on probation, an affidavit of violation of probation was filed. Petitioner then filed a motion to terminate probation and recall mandate, contending that: (1) the crime to which he had pled guilty was only a second degree misdemeanor, (2) second degree misde-meanants cannot be placed on probation for more than six months, (3) accordingly, his probation terminated after six months, and (4) therefore the trial court was without jurisdiction to entertain the violation of probation charges. The trial court denied petitioner’s motion and scheduled a final violation of probation hearing which this court sua sponte stayed.
It is well settled that it is error to place a defendant on probation for more than six months for a second degree misdemeanor which is punishable by a maximum term of sixty days. See Alderman v. State, 356 So. 2d 928 (Fla. 2d DCA 1978); Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978). See also Holloway v. State, 393 So. 2d 1185 (Fla. 2d DCA 1981); Corraliza v. State, 391 So. 2d 330 (Fla. 3d DCA 1980), rev. denied, 399 So. 2d 1141 (Fla.1981). Additionally, it has been held that “a court lacks jurisdiction to entertain an application for revocation of probation based upon a violation which occurred during the probationary period unless, during the term of probation, appropriate steps were taken to revoke or modify probation.” Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981). See also Davidson v. State, 506 So. 2d 43 (Fla. 2d DCA 1987); McPherson v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988).
We reject the state’s contention that the second sentence in section 948.04, Florida Statutes (1989), means that a second degree misdemeanant can be placed on probation for one year. See 15 Fla.Jur.2d Criminal Law 912 (Supp.1990) and compare Smith v. State, 484 So. 2d 581 (Fla.1986). We also reject the state’s contention that petitioner waived his right to contest his illegal sentence because the sentence was the result of a negotiated plea agreement. A defendant cannot acquiesce in an illegal sentence, see Davis v. State, 552 So. 2d 338 (Fla. 4th DCA 1989), and can attack an illegal sentence at any time. See Bouie, 360 So. 2d at 1142; Fla.R.Crim.P. 3.800(a). The cases relied on by the state in its response are distinguishable from the instant case.
Finding that the trial court erred in sentencing petitioner to more than six months’ probation, and that the trial court lacks jurisdiction to proceed with a violation of probation hearing, we grant the petition for writ of habeas corpus and order petitioner discharged.
DOWNEY, DELL and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)…rial court had the judicial power to impose the special condition of probation in the instant case or whether the special condition was void. If the special condition was void, then the situation would be governed by Purvis v. Lindsey ex rel. State, 587 So. 2d 638 (Fla. 4th DCA 1991), which holds that a defendant does not waive his right to contest an illegal sentence because the sentence was the result of a negotiated plea agreement, since a defendant cannot acquiesce in an illegal sentence. Id. at 639. Sen…
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Hause v. State, 643 So. 2d 679 (Fla. 4th DCA 1994)…sought the sentence. Furthermore, he correctly points out that even if he had agreed to the sentence, his acquiescence does not preclude him from appealing an illegal sentence. See Reed v. State, 616 So. 2d 592 (Fla. 4th DCA 1998); Purvis v. State, 587 So. 2d 638 (Fla. 4th DCA 1991). Appellant maintains that the sentence rendered constitutes an illegal sentence because the trial court departed from the presumptive sentencing guidelines without providing written reasons for the departure. See rule 3.701(b)(6…
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Durwin Torbert v. State, 832 So. 2d 203 (Fla. 4th DCA 2002)…reviously held that a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea. See Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)(citing Purvis v. Lindsey ex rel. State, 587 So. 2d 638 (Fla. 4th DCA 1991)). Further, even if we were to apply Nova-ton to the circumstances of this case, we could not conclude from the record that appellant knowingly waived the Hale violation. There was no discussion on the record about whether the of…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)
- Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)
- Smith v. State, 484 So. 2d 581 (Fla. 1986)
- Everette D. Alderman v. State, 356 So. 2d 928 (Fla. 2d DCA 1978)
- White v. State, 391 So. 2d 330 (Fla. 3d DCA 1980)
- Davis v. State, 552 So. 2d 338 (Fla. 4th DCA 1989)
- Holloway v. State, 393 So. 2d 1185 (Fla. 2d DCA 1981)
- Davidson v. State, 506 So. 2d 43 (Fla. 2d DCA 1987)