DONALD FRANK WARE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Ware challenged the revocation of his probation and reimposition of a longer sentence. The court reversed, finding the trial judge lacked jurisdiction to mitigate the original sentence after Ware had begun serving it, rendering the probation order void and all subsequent proceedings a nullity.
The trial judge lacked jurisdiction to mitigate the sentences in June 1965 after Ware had begun serving them. The order placing Ware on probation was void, and all proceedings flowing from that void probation are a nullity. Since Ware has served more than his original concurrent two-year sentences, he must be discharged.
[1] A trial court lacks the power to mitigate a sentence after the defendant has commenced serving the sentence and after the expiration of the statutory time limit for such…
[2] An order that is void ab initio cannot form the basis for subsequent legal proceedings.
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Join FLexlaw to unlock all legal intelligence“the trial judge did not have the power to mitigate the sentences in June of 1965; that said order placing the appellant on probation was void; that, therefore, all proceedings flowing from the void probation are a nullity”
Establishes the core holding that the probation order was void and rendered all subsequent proceedings null
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Join FLexlaw to unlock all legal intelligenceWare pleaded guilty to five crimes and was sentenced to two concurrent years on each. About five months into his sentence, the trial court recalled hi…
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The appellant was originally informed against in the Criminal Court of Record in and for Dade County by the filing of several informations. He ultimately pleaded guilty and was sentenced to two years as to each of five crimes referred to in the informations, with the sentences to run concurrently. Some five months after he began to serve these sentences, he was returned before the trial court on a motion to mitigate [in June of 1965] and placed on five years’ probation. His probation was subsequently revoked in 1968 for alleged violation of probation. He was then re-sentenced to five years each on the five convictions, the first four to run consecutively for a total of twenty years, with the last five year sentence to run concurrently. He ultimately filed a petition, pursuant to Rule 1.850, Cr.P.R., 33 F.S.A., contending that the court erred upon revoking his probation and sentencing him to a term longer than the original sentences. Upon denial of his petition, he has prosecuted this appeal.
We find no merit in the contentions raised in the petition before the trial court. Wilson v. State, Fla.App.1967, 194 So.2d 33; Ruiter v. State, Fla.App.1967, 205 So.2d 556. We are concerned about what appears to be a fundamental jurisdictional problem that appears in this record, i.e., the power of the trial judge to recall the appellant before him after he had commenced the service of his sentence and after the expiration of the time provided for in § 921.25, Fla.Stat., F.S.A.; Rule 1.800, Cr.P.R., and in mitigating the sentence imposed. This was not raised in the trial court, but it is a fundamental error which is apparent on the record and, therefore, is reviewable by this court. Florio v. State *874ex rel. Epperson, Fla.App.1960, 119 So.2d 305, 80 A.L.R.2d 1117; Ritter v. Miami Marine Agency, Inc., Fla.App.1961, 133 So.2d 107; Casey v. Smith, Fla.App.1961, 134 So.2d 846; Rule 3.7, subd. i, F.A.R., 32 F.S.A.
The limits and control of a criminal trial judge over sentences once imposed have recently been the subject of an opinion by this court in State v. Evans, Fla.App.1969, 225 So.2d 548, cert. denied, Fla.1969, 229 So.2d 261,1 which in effect holds, when applied to the facts of this case, that the trial judge did not have the power to mitigate the sentences in June of 1965; that said order placing the appellant on probation was void; that, therefore, all proceedings flowing from the void probation are a nullity. 19 Fla.Jur., Judgments and Decrees, § 254. And, it appearing from the record that the appellant has now served a term in the State prison in excess of the original two-year terms to run concurrently, the order under review be and the same is hereby reversed and remanded, with directions to discharge the appellant from the cause and from the custody of the State of Florida.
Reversed and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Williams v. State, 280 So. 2d 518 (Fla. 3d DCA 1973)…record, it is reviewable by this court sua sponte, notwithstanding the failure of the appellant to raise the issue in the trial court or before this court. Florio v. State ex rel. Epperson, Fla.App.1960, 119 So. 2d 305; Ware v. State, Fla.App.1970, 231 So. 2d 872. It is apparent from the record that the trial court, having adjudicated the appellant guilty of a felony punishable by imprisonment in the State penitentiary, elected to sentence the appellant to the County jail pursuant to the provisions of § 922…
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Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)…hall be reinstated, with appellant being given credit against that sentence for any time served upon the sentence now being vacated.4 HOBSON, A. C. J., and BOARDMAN, J., concur. . State v. Evans, 225 So. 2d 548 (Fla.3d DCA 1969). . Ware v. State, 231 So. 2d 872 (Fla.3d DCA 1970); see Ex parte Bosso, 41 So. 2d 322 (Fla.1949). . The trial court may have also erred by replacing the remaining six months imprisonment with three years of probation. Even when a court is authorized to modify a sentence, it may on…
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State v. Aníbal Sotto and Joaquin A. Amor, 348 So. 2d 1222 (Fla. 3d DCA 1977)…742 (Fla. 1st DCA 1976); State v. Rodriguez, 326 So. 2d 245 (Fla. 3d DCA 1976); State v. Brown, 308 So. 2d 655 (Fla. 1st DCA 1975); Smith v. State, 289 So. 2d 410 (Fla. 4th DCA 1974); Sayer v. State, 267 So. 2d 42 (Fla. 4th DCA 1972); Ware v. State, 231 So. 2d 872 (Fla. 3d DCA 1970); Jefferson v. State, 320 So. 2d 827 (Fla. 4th DCA 1975); State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969), cert. den. 229 So. 2d 261 (Fla.1969), cert. den. 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970). The orders under re…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Florio v. State of Fla. ex rel. A. L. Epperson, 119 So. 2d 305 (Fla. 2d DCA 1960)
- State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969)
- Evans v. State, 229 So. 2d 261 (Fla. 1969)
- Wilson v. State, 194 So. 2d 33 (Fla. 2d DCA 1967)
- Ruiter v. State, 205 So. 2d 556 (Fla. 2d DCA 1967)
- Casey v. Archar B. Smith, 134 So. 2d 846 (Fla. 2d DCA 1961)
- Ritter v. Miami Marine Agency, Inc., 133 So. 2d 107 (Fla. 3d DCA 1961)