ALEXANDER DICAPRIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the circuit court lacked subject matter jurisdiction to enter the original order of probation because the information did not allege facts sufficient to establish felony jurisdiction.
Appellant was charged with possession and delivery of cannabis. The information did not allege a prior conviction or that the amount of marijuana exce…
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DAUKSCH, Judge.
Appellant appeals from an Order revoking his probation and sentencing him to the state penitentiary. However, tíife issue he raises on appeal relates to the original Order withholding adjudication of guilt and placing him on probation.
Appellant contends that the Circuit Court lacked subject matter jurisdiction to hear the case initially and to enter the Order of probation. Since subject matter jurisdiction cannot be conferred by consent, acquiescence or waiver, and lack of such jurisdiction can be raised at any time, even for the first time on appeal, we now consider the issue of jurisdiction on this appeal. Solomon v. State, 341 So. 2d 537 (Fla.2d DCA 1977); Wilds v. Permenter, 228 So. 2d 408 (Fla.4th DCA 1969).
Appellant was charged by information with possession and delivery of cannabis sativa L. The information contained no allegations of a prior conviction of Appellant of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams. In the absence of such allegata, the offenses charged were only misdemeanors as a matter of law and the Circuit Court had no felony jurisdiction. Boley v. State, 273 So. 2d 109 (Fla.4th DCA 1973). Therefore, the Circuit Court’s Order placing Appellant on probation was void. Pope v. State, 268 So. 2d 173 (Fla.2d DCA 1972); Boley v. State, supra.
All proceedings flowing from this void Order, specifically the Order revoking probation and sentencing Appellant, are a nullity and must be reversed. Ware v. State, 231 So. 2d 872 (Fla.3d DCA 1970); Solomon v. State, supra.
REVERSED.
ALDERMAN and ANSTEAD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984)…their revocation hearings; however, since it concerns the circuit court’s subject matter jurisdiction they may raise it now because lack of subject matter jurisdiction is fundamental error that an appellant may raise at any time. Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977); Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979). In our opinion the circuit court’s improvident placement of appellants on probation rather than in a community control program has no effect on the result in this case; had they…
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City OF W. Palm Beach v. Palm Beach Cnty. Police Benevolent Ass'n, 387 So. 2d 533 (Fla. 4th DCA 1980)…s arises from constitutional, statutory or common law authority. The parties may not confer jurisdiction by waiver, failure to object, or consent, where none is given by law. Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977). On the other hand, jurisdiction in arbitration proceedings is conferred by the agreement of the parties and is circumscribed by the terms of that agreement. Accordingly, jurisdiction may and does arise by waiver, failure to obje…
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Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979)…herein the offense is lodged has no jurisdiction over it. Shanklin v. State, supra. Furthermore, subject matter jurisdiction cannot be cured by consent, waiver or acquiescence. Radford v. State, 360 So. 2d 1303 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So. 2d 78 (Fla. 4th DCA 1977). The record discloses no amendment of the information in this case. As we have noted, the evidence would support a verdict that the stolen television had a value of over $100, but appellant was tried by a jury and did not plead…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972)
- Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977)
- Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969)
- Ware v. State, 231 So. 2d 872 (Fla. 3d DCA 1970)
- Boley v. State, 273 So. 2d 109 (Fla. 4th DCA 1973)