ROBERT ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the revocation of a defendant's community control, finding that the record did not sufficiently establish the expiration of his original probation term. The court also noted potential issues with the original sentence, allowing the defendant to pursue post-conviction relief.
The court held that the record did not sufficiently establish when Ortiz's probation began or expired, thus the issue of jurisdiction required an evidentiary hearing. The court also noted potential grounds for challenging the original sentence as illegal.
[1] A claim that a trial court lacked jurisdiction to revoke probation due to the expiration of the original probationary term requires an evidentiary hearing if the record d…
[2] A claim that a trial court lacked jurisdiction to revoke probation due to the expiration of the original probationary term is cognizable in a motion for postconviction re…
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Join FLexlaw to unlock all legal intelligence“Ortiz argues that because his original probationary term in case 99-551 had expired in August 2006, the trial court lacked jurisdiction to revoke his original probation in 2007 and place him on community control.”
States the appellant's primary argument on appeal.
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Join FLexlaw to unlock all legal intelligenceRobert Ortiz appealed the revocation of his community control, arguing that his original probationary term had expired before the revocation. The appe…
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Robert Ortiz appeals the revocation of his community control in six circuit court cases. Ortiz argues that because his original probationary term in case 99-551 had expired in August 2006, the trial court lacked jurisdiction to revoke his original probation in 2007 and place him on community control. This claim is not supported by the record because the record does not indicate when Ortiz began serving his probation or when his probation expired; thus, this issue requires an eviden-tiary hearing. See Gonzalez v. State, 705 So.2d 954, 955 (Fla. 1st DCA 1998). Therefore, we affirm without prejudice to any right Ortiz may have to raise this claim in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See id. Feagin v. State, 938 So.2d 623, 624 (Fla. 2d DCA 2006) (holding that such a claim is cognizable under rule 3.850); Sepulveda v. State, 909 So.2d 568, 571 (Fla. 2d DCA 2005) (same).
We also note, on a related matter, that Ortiz’s original written sentence in case 99-551 indicates that he was sentenced to 48 months in prison followed by 72 months’ probation for the offense of burglary of an unoccupied structure, which is a third-degree felony. See § 810.02(4)(a), Fla. Stat. (1999). But a document labeled “circuit court sentence” indicates that Ortiz was sentenced on the burglary to serve 48 months in prison followed by only 12 *233months’ probation, and the order placing Ortiz on probation also indicates that his probationary term was only 12 months. Our affirmance is without prejudice to any right Ortiz may have to file a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), challenging his original sentence in 99-551 as illegal, either because the sentence of 48 months in prison followed by 72 months’ probation exceeds the statutory maximum for a third-degree felony, see § 775.082(3)(d), Fla. Stat. (1999), or because the written sentence does not comport with the oral pronouncement of sentence, see Williams v. State, 957 So.2d 600, 603 (Fla.2007).
Affirmed.
YILLANTI and KHOUZAM, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 957 So. 2d 600 (Fla. 2007)
- Thomas v. State, 909 So. 2d 568 (Fla. 4th DCA 2005)
- Sepulveda v. State, 909 So. 2d 568 (Fla. 2d DCA 2005)
- Linzell Feagin, Jr. v. State, 938 So. 2d 623 (Fla. 2d DCA 2006)
- Wise v. State, 705 So. 2d 954 (Fla. 1st DCA 1998)
- Gonzalez v. State, 705 So. 2d 954 (Fla. 1st DCA 1998)