MICHAEL RAY SOLOMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Ray Solomon appealed his probation revocation and resulting five-year prison sentence. The Florida appellate court reversed, finding that the trial court lacked jurisdiction to modify Solomon's original sentence by suspending it and imposing probation outside the statutory time window, rendering the probation revocation and associated plea bargain void.
The trial court lacked jurisdiction to modify the sentence outside the statutory window, rendering the probation order void as fundamental error. Consequently, the probation revocation, five-year sentence, and associated plea bargain were all void, and the original one-year sentence must be reinstated.
[1] A court loses jurisdiction over a sentence upon the expiration of the term in which the original sentence was imposed, except to enforce the sentence.
[2] A court's order modifying a sentence after the expiration of its jurisdictional term is void for lack of jurisdiction.
Previewing 2 of 6 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“Fla.R.Crim.P. 3.800 allows a court to reduce a sentence during the same term at which the original sentence was imposed (or within sixty days if less than sixty days remain in the term). Upon expiration of the term of the court which imposed a lawful sentence (or the sixty days when applicable), the court which imposed that sentence loses control over the sentence except to enforce it.”
Establishes the jurisdictional limit on sentence modification and the source of the trial court's lack of authority.
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Join FLexlaw to unlock all legal intelligenceSolomon pleaded guilty to breaking and entering with intent to commit a misdemeanor and was sentenced to one year in county jail on January 31, 1975. …
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GRIMES, Judge.
Appellant pled guilty to a charge of breaking and entering with the intent to commit a misdemeanor in violation of Section 810.05, Florida Statutes (1973). On January 31, 1975, he was sentenced to one year in the county jail. On July 11, 1975, that sentence was suspended and appellant was placed on three years probation.
On April 6, 1976, an affidavit and warrant were issued which charged appellant with violating the conditions of his probation by committing and being arrested for a robbery. A probation revocation hearing was held at which the appellant pled guilty to violating a condition of his probation pursuant to a plea bargain. According to the bargain, the trial court could impose the maximum for the probation violation in return for the state placing the robbery charge on the absentee docket without a hold. Based on appellant’s admission, the trial court found that appellant had violated a condition of his probation and revoked the probation. The trial court then adjudicated appellant guilty of the underlying offense of breaking and entering with the intent to commit a misdemeanor and sentenced him to five years imprisonment with credit for time served. Appellant appeals this judgment and sentence.
Appellant was originally sentenced on January 31,1975. According to Section 26.-34, Florida Statutes (1973), the Hillsbor-ough County Circuit Court began a new term on the first Tuesday of April. The court suspended the original sentence and replaced it with three years probation on July 11, 1975. Thus, the changed sentence was imposed during a subsequent term.
Fla.R.Crim.P. 3.800 allows a court to reduce a sentence during the same term at which the original sentence was imposed (or within sixty days if less than sixty days remain in the term). Upon expiration of the term of the court which imposed a lawful sentence (or the sixty days when applicable), the court which imposed that sentence loses control over the sentence except to enforce it.1 This means that the order which placed appellant on probation was void for lack of jurisdiction, and this is fundamental error even if not raised at the trial court.2 Section 948.01, Florida Statutes (1973), which permits the suspension of the balance of a sentence and the placing of a defendant on probation, specifically contemplates that this shall be done at the time of the original sentencing.
Since the change in the sentence which placed appellant on probation was void, it follows that the probation revocation and its corresponding sentence of five years imprisonment was also void.3 In turn, this makes the plea bargain entered at the probation revocation hearing a nullity. Therefore, the state may proceed on the robbery charge which was dropped in the plea bargain.
The judgment and sentence are reversed. The original sentence of January 31, 1975, shall 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 only mitigate and may not increase the sentence. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Beckom v. State, 227 So. 2d 232 (Fla.2d DCA 1969). However, a grant of probation for a term which is longer than the sentence is not necessarily a reduction of sentence. Cf. Reynolds v. State, 339 So. 2d 714 (Fla.2d DCA 1976); Phillips v. United States, 212 F. 2d 327 (8th Cir. 1954).
. Sayer v. State, 267 So. 2d 42 (Fla.4th DCA 1972).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)…she had given a false age and was sentenced as an adult; “[s]he accepted the benefits of probation and had one of the counts against her dropped as a part of the plea negotiations”), cert. denied, 353 So. 2d 678 (Fla.1977). Compare Solomon v. State, 341 So. 2d 537, 538 (Fla. 2d DCA 1977) (change of sentence from one year in the county jail to three years probation imposed during a later term “void for lack of jurisdiction” as was revocation of probation and five year sentence of imprisonment; plea bargain agr…
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Shearund Duron King v. State, 373 So. 2d 78 (Fla. 3d DCA 1979)…king probation, a defendant may not attack the legality of the sentence placing him on probation. See United States v. Francischine, 512 F. 2d 827 (5th Cir. 1975). An exception exists, however, where the [*79] sentence is void. See Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977). The defendant here argues that only the probation portion of his sentence was void and, therefore, that he was never lawfully on probation. We hold that the defendant has waived his right to question the legality of a probation,…
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Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)…n why appellant’s probation order was invalid. Ordinarily, a trial judge loses jurisdiction to change a sentence under Florida Rule of Criminal Procedure 3.800(b) after sixty days. White v. State, 404 So. 2d 804 (Fla. 2d DCA 1981); Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977). If an appeal is taken, the rule extends the time until sixty days after receipt of the appellate mandate. However, the appeal itself removes jurisdiction from the trial judge, thereby eliminating his authority to change the sente…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Benz, 282 U.S. 304 (U.S. 1931)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969)
- Phillips v. United States, 212 F.2d 327 (8th Cir. 1954)
- Sonz v. Rose-Marie, 41 So.2d 322 (Fla. 1949)
- Ware v. State, 231 So. 2d 872 (Fla. 3d DCA 1970)
- Sayer v. State, 267 So. 2d 42 (Fla. 4th DCA 1972)
- Reynolds v. State, 339 So. 2d 714 (Fla. 2d DCA 1976)
- Beckom v. State, 227 So. 2d 232 (Fla. 2d DCA 1969)