ROLANDO OTERO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rolando Otero appealed his conviction and probation revocation, challenging the trial court's jurisdiction to revoke probation where no probation order appeared in the record. The court reversed, holding that without documentary evidence of an original probation order or sentence, the trial court lacked subject matter jurisdiction to revoke probation.
The trial court lacked subject matter jurisdiction to revoke probation because there was no evidence in the record that probation was part of Otero's original sentence. A probation order or transcript of the original sentencing hearing is required to establish the court's jurisdiction to revoke probation.
[1] A trial court lacks jurisdiction to revoke probation if the record does not establish that the defendant was lawfully placed on probation.
[2] A defendant's claim that he was not lawfully on probation raises a question of the trial court's jurisdiction, which may be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“Because the record does not reflect that the trial court had subject matter jurisdiction to revoke appellant's alleged probation, we reverse.”
Establishes the core holding that lack of jurisdictional foundation mandates reversal
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Join FLexlaw to unlock all legal intelligenceOtero was charged with bombings in 1975, tried in Okaloosa County in 1977, and received a judgment and sentence with no reference to probation. When r…
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WARNER, J.
Appellant challenges his conviction and sentences based upon the revocation of his alleged probation. He claims that the trial court lacked the jurisdiction to revoke probation where the record does not reveal that the original trial court actually placed him on probation. Because the record does not reflect that the trial court had subject matter jurisdiction to revoke appellant’s alleged probation, we reverse.
The state charged appellant with committing certain bombings in Dade County in 1975. Due to widespread publicity, the trial was apparently moved around the state and finally tried in Okaloosa County. The record contains copies of the original judgment and sentence entered there in 1977. The judgment and sentence does not contain any reference to a probationary term after his lengthy imprisonment. There is also no order of probation. However, during the case’s travels, it had been transferred to Hillsborough County where portions of the record were apparently lost.
Despite the lack of a probation order, appellant’s probation officer testified that she began supervising his probation when he was released from prison in 1989, even though she did not have any order of probation to guide her in instructing appellant. This probation continued until 1997, when the probation officer filed an affidavit of violation attesting that appellant had violated his probation by committing several substantive offenses, including kidnap-ing and armed robbery.
The violation of probation case ended up in Broward County because the parties stipulated to venue there, as appellant was tried in Broward on other substantive offenses for which he received lengthy sentences. As to the violation of probation, the trial court heard evidence of the violations, revoked probation, and sentenced appellant accordingly.
Because appellant’s claim that he was not lawfully on probation at the time he was violated raises a question of the trial court’s jurisdiction, this fundamental issue may be raised for the first time on appeal. See Hebb v. State, 714 So. 2d 689, 639-40 (Fla. 4th DCA 1998). In this case, the judgment and sentence entered in 1977 does not contain any reference to probation, which is considered part of a sentence for purposes of appellate review. See Landeverde v. State, 769 So. 2d 457, 463 n. 3 (Fla. 4th DCA 2000). The probation officer’s testimony also does not establish that appellant was lawfully on probation because she said she never saw any probation order. On this record, we are compelled to reverse because there is no evidence that probation was part of appellant’s sentence and thus no showing that the trial court had jurisdiction to revoke probation.1 We therefore reverse and remand for further proceedings in which the state may proceed on a new amended affidavit of violation raising the same substantive charges. During those proceedings, the state shall be required to establish the underlying order of probation,2 either through a transcript of the original sentencing hearing or a written probation order. DELL and GUNTHER, JJ., concur. . It occurs to us that, because this sentence was entered in 1977, while parole was still available, that parole, rather than probation, may have applied.
. The burden of properly invoking the court’s jurisdiction is on the state. See Christopher v. State, 397 So. 2d 406, 407 (Fla. 5th DCA 1981).
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Woods v. State, 879 So. 2d 651 (Fla. 5th DCA 2004)…to seek relief via a direct appeal. . See Fla. R.App. P. 9.140(b)(2)(A)(ii)a. ("A defendant who pleads guilty or nolo conten-dere may otherwise directly appeal only ... the lower tribunal’s lack of subject matter jurisdiction....”); Otero v. State, 793 So. 2d 1115 (Fla. 4th DCA 2001); Winter v. State, 781 So. 2d 1111 (Fla. 1st DCA), review denied, 799 So. 2d 219 (Fla.2001); Harrell v. State, 721 So. 2d 1185, 1186-87 (Fla. 5th DCA 1998) (citing C.W. v. State, 637 So. 2d 28, 29 (Fla. 2d DCA 1994); Booker v. Sta…
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Wright v. State, 47 So. 3d 972 (Fla. 4th DCA 2010)…rsed with instructions. GROSS, C.J., and STEVENSON, J„ concur. . Defendant’s challenge to the trial court’s jurisdiction raises a jurisdictional question that is fundamental and capable of being raised for the first time on appeal. Otero v. State, 793 So. 2d 1115, 1116 (Fla. 4th DCA 2001); Hebb v. State, 714 So. 2d 639, 639-40 (Fla. 4th DCA 1998). . We distinguish this from a split sentence where the probationary period does not legally commence until the incarcerative part has been fully served.…
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Jones v. State, 954 So. 2d 675 (Fla. 4th DCA 2007)…2004. The record supports the defendant’s position, however. The defendant’s challenge to the trial court’s jurisdiction raises a jurisdictional question that is fundamental and capable of being raised for the first time on appeal. Otero v. State, 793 So. 2d 1115, 1116 (Fla. 4th DCA 2001) (citing Hebb v. State, 714 So. 2d 639, 639-40 (Fla. 4th DCA 1998)). “Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Christopher v. State, 397 So. 2d 406 (Fla. 5th DCA 1981)
- Smith v. McELROY, 769 So. 2d 457 (Fla. 1st DCA 2000)
- Landeverde v. State, 769 So. 2d 457 (Fla. 4th DCA 2000)