MICHAEL EDDIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Eddie appeals the revocation of his probation, arguing the trial court lacked subject matter jurisdiction to revoke it. The appellate court agrees, finding the trial court erroneously extended Eddie's probation without first formally charging him with a violation, thereby lacking jurisdiction to later revoke that extended probation.
The trial court lacked subject matter jurisdiction to revoke Eddie's probation. The extension of probation was entered in error because Eddie was never formally charged with a violation of probation before the extension, as required by statute. Since the original probationary term expired on March 5, 2005, and the violation was not charged until May 2005, the trial court had no jurisdiction to revoke probation or impose a sentence.
[1] A trial court lacks subject matter jurisdiction to extend a probationary term if the probationer has not been formally charged with a violation of probation and brought b…
[2] A fundamental error, such as a lack of subject matter jurisdiction, may be addressed for the first time on appeal.
Previewing 2 of 4 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“Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993).”
Establishes the statutory requirement that probation can only be modified after formal charging and hearing on a violation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEddie was sentenced to 76 months' imprisonment followed by 5 years of sex offender probation. Upon release to probation, Eddie filed a motion to exten…
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PER CURIAM.
This is an appeal from the trial court’s order revoking Appellant’s probation. Appellant argues that the trial court lacked jurisdiction to revoke his probation. Because we find that the trial court did lack jurisdiction, we must reverse.
Appellant was originally sentenced to 76 months’ imprisonment followed by 5 years of sex offender probation. Upon his release to probation, Appellant filed a motion seeking to extend his probationary term by two years in exchange for the State voluntarily dismissing civil commitment proceedings against him. The trial court granted the motion and extended Appellant’s probation from March 5, 2005, until March 5, 2007.
On May 9, 2005, an affidavit of violation of probation was filed against Appellant. After a hearing, the trial court found that Appellant had willfully and substantially violated his probation. The trial court revoked Appellant’s probation and sentenced him to 101 months’ imprisonment. Appellant now argues that the trial court lacked subject matter jurisdiction to revoke his probation because it was error to extend his probation by two years. Because this is a question of fundamental error, it may be addressed for the first time on appeal. Oglesby v. State, 911 So. 2d 1288 (Fla. 1st DCA 2005).
Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993). Clark v. State, 579 So. 2d 109, 110-11 (Fla.1991); Mundorff v. State, 890 So. 2d 1234 (Fla. 1st DCA 2005); Martin v. State, 691 So. 2d 1204, 1205 (Fla. 4th DCA 1997); Delancey v. State, 653 So. 2d 1062, 1064 (Fla. 4th DCA 1995). In this case, Appellant was never charged with a violation of probation before his probationary term was extended; thus, the trial court was without subject matter jurisdiction to enter the order of modification. Mundorff, 890 So. 2d at 1236; see also Woods v. State, 879 So. 2d 651, 654 (Fla. 5th DCA 2004) (holding that lack of jurisdiction may not be cured by consent).
Because the modification order was entered in error, Appellant’s probationary term expired on March 5, 2005. The affidavit of violation of probation was not filed until May 2005, two months after expiration of Appellant’s probationary term. Thus, the trial court lacked jurisdiction to revoke Appellant’s probation and sentence him to a term of imprisonment. Morgan v. State, 757 So. 2d 618, 619 (Fla. 2d DCA 2000).
Accordingly, the order modifying Appellant’s probation and the judgment and sentence of violation of probation are VACATED and Appellant is to be discharged. All other issues raised on appeal are AFFIRMED.
BARFIELD, BROWNING and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Burkhart v. State, 974 So. 2d 1203 (Fla. 1st DCA 2008)…itions of probation. Under section 948.06, probation may not be enhanced until the probationer has been formally charged with a violation of probation, brought before the court, and advised of the charge. Lippman, 633 So. 2d at 1064; Eddie v. State, 933 So. 2d 570, 571 (Fla. 1st DCA 2006). Additionally, the double jeopardy protection prohibits enhancement of probation conditions without proof of a violation of probation. Lippman, 633 So. 2d at 1064. However, in Harroll v. State, 960 So. 2d 797, 798 (Fla. 3d…
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Suliany Ivette Garcia-Medina v. State, 135 So. 3d 1119 (Fla. 2d DCA 2013)…dification and has waived notice and hearing. See also Nichols v. State, 672 So. 2d 825, 825 (Fla. 2d DCA 1995) (“Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms.”); Eddie v. State, 933 So. 2d 570, 571 (Fla. 1st DCA 2006) (“Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge,…
Authorities Cited
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- Elvin Otis Morgan v. State, 757 So. 2d 618 (Fla. 2d DCA 2000)
- Woods v. State, 879 So. 2d 651 (Fla. 5th DCA 2004)
- Delancey v. State, 653 So. 2d 1062 (Fla. 4th DCA 1995)
- Mundorff v. State, 890 So. 2d 1234 (Fla. 1st DCA 2005)
- Oglesby v. State, 911 So. 2d 1288 (Fla. 1st DCA 2005)
- Martin v. State, 691 So. 2d 1204 (Fla. 4th DCA 1997)
- Eddie v. State, 740 So. 2d 583 (Fla. 1st DCA 1999)