JAMES STERLING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Sterling appeals his sentence after the trial court added a one-year probationary term 14 days after pronouncing the original sentence. The appellate court held that the trial court lacked jurisdiction to modify the sentence by adding probation, which constitutes an increase in the original sentence, and struck the probationary condition.
A trial court lacks jurisdiction to increase an original sentence after it has been pronounced and the defendant has begun serving it. The addition of a probationary term constitutes an increase in sentence and therefore exceeds the court's authority under Florida Rule of Criminal Procedure 3.800(b). The probationary condition is struck.
[1] A trial court lacks jurisdiction to increase a defendant's original sentence after it has been pronounced and the defendant has begun serving it.
[2] The addition of a probationary term to an original sentence constitutes an increase in that sentence.
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Join FLexlaw to unlock all legal intelligence“We have no alternative in this case except to strike the attempted modification since at the time the probationary term was added, the trial court lacked jurisdiction to increase the original sentence.”
The core holding that the trial court exceeded its authority by adding probation after pronouncing the original sentence.
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Join FLexlaw to unlock all legal intelligenceSterling pled guilty to grand theft and battery pursuant to a plea bargain. The trial court orally pronounced a sentence of seven months in jail with …
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W. SHARP, Judge.
Sterling appeals from his sentence, which was modified by the trial judge’s addition of a probationary term, 14 days after the original sentence had been pronounced, and after Sterling had begun to serve the original sentence. We have no alternative in this case except to strike the attempted modification since at the time the probationary term was added, the trial court lacked jurisdiction to increase the original sentence. See Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986); Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983); Gonzalez v. State, 384 So. 2d 57 (Fla. 4th DCA 1980).
Pursuant to a plea bargain, Sterling pled guilty to grand theft and battery, and the state dropped other counts. The agreement provided that Sterling would be sentenced to seven months in the Orange County Jail with credit for 129 days and that he would pay a $100.00 fine, court costs, and a $100.00 public defender hen. The court orally pronounced that sentence. There was nothing in the plea agreement or sentence that mentioned probation.
The state thereafter filed a motion to “clarify” the sentence. A hearing was held, two weeks after the original sentencing, and on the day that Sterling’s original sentence should have expired. The state asked the court to include a provision that Sterling have no contact with the victim in the case. The court pointed out that there was no way it could enforce such a no contact provision, since the plea bargain and sentence had contained no term of probation. Over objection of defense counsel, the court offered Sterling two alternatives: withdraw his plea, remain in jail and go to trial, or accept a condition of probation for one year that he have no contact with the victim. Faced with this Hob-son’s choice, Sterling elected probation.
Florida Rule of Criminal Procedure 3.800(b) allows for a modification of a legal sentence. However, a trial judge may not, pursuant to powers to modify, increase the original sentence given. Trowpe; Committee Notes to 1980 Amendment of Rule 3.800. Imposition of hours of community service at the end of a prison term constitutes an increase in a defendant’s sentence. Tessier v. Moe, 485 So. 2d 46 (Fla. 4th DCA 1986). The addition of a probationary term also represents an increase in a sentence. Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988).
The state argues that Sterling waived his right to object to the increase in sentence, by accepting the condition of probation. However, a party cannot stipulate to jurisdiction when a court lacks it. White v. State, 404 So. 2d 804 (Fla. 2d DCA 1981). Accordingly, we strike the condition of probation which the trial court added, after the hearing on the state’s motion to “clarify” the sentence. The trial court at that point lacked jurisdiction to make Sterling’s sentence a harsher one in any regard.
Condition of Probation STRICKEN.
COBB and HARRIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)…der rule 3.800(a), it can correct an “illegal” sentence at any time. Rule 3.800(c) does not apply in this case because that rule allows the trial court discretion to give the defendant a more favorable incarcerative sentence. See Sterling v. State, 682 So. 2d 694 (Fla. 5th DCA 1996). The only circumstance in which it may add a condition that might be deemed an increase in the sentence is when it adds a condition of probation or community control under chapter 948. See Harroll v. State, 960 So. 2d 797, 798 (F…
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Linnon v. State, 988 So. 2d 70 (Fla. 2d DCA 2008)…has discretion to give the defendant a more favorable incarcerative sentence. Delemos, 969 So. 2d at 549. The power to modify a sentence under rule 3.800(c) does not authorize a trial court to increase a defendant’s sentence. See Sterling v. State, 682 So. 2d 694, 695 (Fla. 5th DCA 1996).1 D. Double Jeopardy Mr. Linnon next argues that the prohibition against double jeopardy precluded the trial court from adding the mandatory minimum term to his original sentence, citing this court’s decision in Delemos. I…
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Jones v. State, 760 So. 2d 994 (Fla. 2d DCA 2000)…ee Notes to 1980 Amendment of Rule 3.800. Therefore, the trial court did not have jurisdiction to add a probationary term three days after imposing the original sentence. See Dailey v. State, 575 Solid 237, 238 (Fla. 2d DCA 1991); Sterling v. State, 682 So. 2d 694, 695 (Fla. 5th DCA 1996). We remand this case to the trial court with directions to strike the probationary term. CAMPBELL, A.C.J., and STRINGER, J., Concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Fuse v. State, 384 So. 2d 57 (Fla. 4th DCA 1980)
- White v. State, 404 So. 2d 804 (Fla. 2d DCA 1981)
- Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986)
- Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991)
- Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988)
- A.R.B. v. State, 485 So. 2d 46 (Fla. 3d DCA 1986)
- Tessier v. MOE, 485 So. 2d 46 (Fla. 4th DCA 1986)