GEORGE BATTLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Battles appealed an order revoking his probation, arguing that the trial court lacked jurisdiction because a prior modification order improperly extended his probation. The First District Court of Appeal affirmed the revocation, holding that Battles failed to timely appeal the modification order and that the trial court had jurisdiction because the violation affidavit was filed while probation was still active.
The trial court had jurisdiction to revoke Battles' probation because the violation affidavit was filed while Battles remained on probation, and Battles failed to timely appeal the prior modification order, making that order the law of the case.
[1] A party may not challenge an unappealed order modifying probation in a subsequent appeal from an order revoking probation.
[2] A party who requests a modification of probation cannot later challenge the propriety of that modification.
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Join FLexlaw to unlock all legal intelligence“This appeal is not the proper forum for arguing the merits of the previous modification order.”
Establishes that Battles cannot collaterally attack an unappealed modification order through a probation revocation appeal.
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Join FLexlaw to unlock all legal intelligenceBattles' probation was previously modified, extending it by twelve months but not beyond the applicable maximum sentence. A violation affidavit was fi…
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KAHN, C.J.
This is an appeal from an order revoking the appellant’s probation.
Appellant argues that the trial court lacked jurisdiction to revoke his probation because the trial court, in a previous and unappealed modification order, improperly extended probation by twelve (12) months, but not beyond the applicable maximum sentence. This appeal is not the proper forum for arguing the merits of the previous modification order. See, e.g., Baxter v. State, 596 So. 2d 460, 460 (Fla. 2d DCA 1991)(“Because the first two of the challenged conditions were provisions of defendant’s original probation, defendant should have appealed them at the time of their original imposition instead of now.”).
See generally Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA 1997) (“[T]hat unap-pealed order is not before us for review, and we do not pass on the merits of either the temporary injunction or the underlying action.”); Calicchio v. Calicchio, 693 So. 2d 1124, 1124 (Fla. 4th DCA 1997)(“[Appellant] cannot use an order finding him in contempt as a back door to challenging the propriety of the unappealed order awarding alimony.”).
Had Battles wished to contest the modification of probation, he should have appealed the modification order. The most likely reason appellant did not contest the modification is that he actually requested it. See McPhee v. State, 254 So. 2d 406, 409-10 (Fla. 1st DCA 1971)(“[T]he general rule is that a party cannot occupy inconsistent positions in the course of a litigation. It may be also laid down as a general proposition that where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it is to the prejudice of the party who has acquiesced in the position taken by him.”)(quoting Fla. Jur. Estoppel and Waiver § 51); see also King v. State, 373 So. 2d 78, 78 (Fla. 3d DCA 1979)(“Having fully accepted the improper sentence in the prior proceedings, the defendant may not subsequently come before the courts advocating a mutually inconsistent position.”).
Further, a trial court has subject matter jurisdiction over a probationer for the term of probation. See § 948.06(1)(a), Fla. Stat. (2004). Appellant’s probation did not expire until December 6, 2004. The affidavit of violation was filed on October 5, 2004. Once a violation affidavit is filed, the probationary period is tolled until the court enters a ruling on the violation. See § 948.06(1)(d), Fla. Stat. (2004). Because the affidavit was filed while appellant was still on probation, the trial court maintained jurisdiction. Accordingly, the order revoking probation is AFFIRMED.
PADOVANO and THOMAS, JJ., concur.
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Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209 (Fla. 2009)…t could file a third-party, complaint against Lucas, but then Metropolitan has argued the opposite position to this Court. And “[t]he general rule is that a party cannot occupy inconsistent positions in the course of a litigation.” Battles v. State, 919 So. 2d 621, 622 (Fla. 1st DCA 2006) (quoting McPhee v. State, 254 So. 2d 406, 409 (Fla. 1st DCA 1971)). Indeed, “where a party assumes a certain position in a legal proceeding and succeeds in maintaining that position he may not thereafter, simply because his…
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Insko v. State, 933 So. 2d 679 (Fla. 2d DCA 2006)…as acquiesced in the position taken by him.” Id. at 409-10 (quoting 12 Fla. Jur. Estop-pel and Waiver § 51). This general principle of estoppel has been applied in other [*684] criminal cases in analogous circumstances. See, e.g., Battles v. State, 919 So. 2d 621 (Fla. 1st DCA 2006); McMillan v. State, 701 So. 2d 1214 (Fla. 3d DCA 1997); McKee v. State, 450 So. 2d 563 (Fla. 3d DCA 1984); King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979). THE REQUIREMENT THAT THE TRIAL COURT COMPLY WITH OUR MANDATE The second…
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Lakasia Portee-Jones v. Portee (Fla. 1st DCA 2025)…tending the injunction together with her notice of appeal of the order adjudging her to be in contempt and imposing a jail sentence. Thus, her arguments on appeal regarding the extension of the injunction below is improper. See Battles v. State, 919 So. 2d 621, 622 (Fla. 1st DCA 2006). Because the trial court did not comply with rule 3.840 when it imposed an indirect criminal contempt sanction, we reverse the forty-day jail sentence imposed upon Ms. Jones and remand for further proceedings consisten…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Shearund Duron King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979)
- Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615 (Fla. 2d DCA 1997)
- Calicchio v. Calicchio, 693 So. 2d 1124 (Fla. 4th DCA 1997)
- Baxter v. State, 596 So. 2d 460 (Fla. 2d DCA 1991)