JERRY K. PETTERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry K. Petters appeals the revocation of his probation, challenging the trial court's authority to modify his sentence years after it was imposed. The court holds that the trial court lacked jurisdiction to modify the sentence outside the statutory time limit, rendering the subsequent probation and its revocation void.
The trial court lacked jurisdiction to modify the sentence because it was done outside the statutory time limit prescribed by Fla.R.Crim.P. 3.800. Consequently, the modification of the sentence was void, and the probation placed upon that void modification was also a nullity. The original sentence imposed on July 3, 1973, is reinstated.
[1] A trial court lacks jurisdiction to modify a sentence after the expiration of the time limits prescribed by rule for such modification.
[2] A probation and its subsequent revocation are nullities if based upon a void modification of a sentence.
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Join FLexlaw to unlock all legal intelligence“At the time the trial court reduced appellant's sentence, Fla.R.Crim.P. 3.800 allowed a court to modify a sentence only during the same term at which it was imposed or within sixty days after sentence if less than sixty days remained in the term.”
Establishes the statutory time limitation governing sentence modification authority
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Join FLexlaw to unlock all legal intelligencePetters entered a plea of nolo contendere to felonious possession of a firearm and was placed on probation for five years on July 3, 1973. One year la…
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SCHEB, Acting Chief Judge.
Appellant was placed on probation as a result of the trial court having reconsidered his prison sentence which had been imposed at a prior term of court. In his appeal from revocation of that probation we hold that the court lacked jurisdiction to modify the sentence. Consequently the probation and revocation thereof were nullities. We reverse.
After appellant entered a plea of nolo contendere to a charge of felonious possession of a firearm, the trial court adjudged him guilty and, on July 3, 1973, placed him on probation for five years. Exactly one year later, after he pled guilty to violating the conditions of his probation, the court sentenced appellant to prison for an indeterminate term of six months to three years. Thereafter, on June 24, 1975, the trial court, on appellant’s petition for reconsideration, vacated that judgment and sentence and placed him on probation for three years. This latter probation was revoked on June 30, 1976, at which time the trial court sentenced appellant to six years in prison with credit for the 182 days served in county jail. This appeal is taken from this last revocation of probation.
At the time the trial court reduced appellant’s sentence, Fla.R.Crim.P. 3.800 allowed a court to modify a sentence only during the same term at which it was im posed or within sixty days after sentence if less than sixty days remained in the term.1 After this time elapsed the sentencing court had no further control except to enforce the sentence it had previously imposed. There are two terms of the circuit court in Pinel-las County. The spring term commences on the first Monday in May; the fall term on the first Monday in December. Section 26.-27, Florida Statutes (1975). The order placing appellant on probation on June 24,1975, was entered beyond the permitted time limit and was therefore void for lack of jurisdiction. Solomon v. State, 341 So. 2d 537 (Fla.2d DCA 1977). The modification of appellant’s sentence having been void, it follows that the placing of appellant on probation and the revocation thereof were nullities.
Accordingly, the order of the trial court is reversed, and the indeterminate sentence of six months to three years imposed on July 3, 1974, is reinstated. The trial court is directed to allow credit for all time served as a result of the offense for which appellant has been sentenced.
Reversed and remanded.
OTT and RYDER, JJ., concur. . On March 3, 1977, the Florida Supreme Court amended Fla.R.Crim.P. 3.800 to read, “A court may reduce a legal sentence imposed by it within sixty days after such imposition . removing all language referring to terms of court. The Florida Bar (Re Florida Rules of Criminal Procedure), 343 So. 2d 1247 (Fla.1977).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978)…ppellant was charged only with a misdemeanor, the circuit court had no jurisdiction to proceed and its order placing appellant on probation was void. It follows, therefore, that the order modifying his probation was also a nullity. Petters v. State, 350 So. 2d 558 (Fla. 2d DCA 1977); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977). Accordingly, the order placing appellant on probation and the order modifying that probation are hereby vacated. GRIMES, A. C. J., and OTT, J., concur. . § 812.031, Fla.Sta…
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State v. Sutton, 371 So. 2d 717 (Fla. 2d DCA 1979)…e no allega [*718] tion that the sentence was illegal, to justify relief under Fla.R.Crim.P. 3.800 or 3.850. After the passage of 60 days from imposition of the sentence, the trial court had no jurisdiction to modify the sentence. Petters v. State, 350 So. 2d 558 (Fla.2d DCA 1977); Fla.R.Crim.P. 3.800(b). Reversed, and remanded with instruction to reinstate the eleven and one-half month sentence with credit for all time served under this charge. HOBSON, Acting C. J., and SCHEB and RYDER, JJ., concur.…
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Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980)…s original sentence. This court has also held that where the order of the trial court mitigating an appellant’s sentence was void, the subsequent placing of the appellant on probation and the revocation of that probation are void. Petters v. State, 350 So. 2d 558 (Fla.2d DCA 1977); Solomon v. State, 341 So. 2d 537 (Fla.2d DCA 1977). Therefore, in the instant case the trial court’s revocations of the appellant’s probation and the sentence of two consecutive four-year terms of imprisonment for the underlying…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fla. Bar. re Fla. Rules of Crim. Procedure, 343 So. 2d 1247 (Fla. 1977)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)