ROBERT E. WATERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1978-02-17
No. 77-1000
GRIMES, A. C. J., and OTT, J., concur.
354 So. 2d 1277 Florida District Court of Appeal, Second District (1978) Negative Treatment
Cited by 25 cases

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Holding

The court held that the circuit court lacked subject-matter jurisdiction because the information failed to allege the value of the stolen property, rendering the conviction and subsequent probation orders void.


Headnotes

[1] A fundamental lack of subject-matter jurisdiction can be raised at any time, even on appeal, and is not subject to waiver.

[2] An information charging the offense of receiving stolen property must allege the value of the property to establish felony jurisdiction in the circuit court.

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Facts & Procedural History

Appellant was charged with receiving stolen property, but the information did not state the value of the property. He pled guilty, was placed on proba…

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Opinion of the Court
SCHEB, Judge.

SCHEB, Judge.

Appellant contends the information under which he was convicted and placed on probation was insufficient to vest subject-matter jurisdiction in the circuit court, and, therefore, that court’s subsequent order revoking his probation was a nullity. We agree.

In February 1976 appellant was charged with receiving stolen property in violation of Section 812.031, Florida Statutes (1975).1 The information alleged that the stolen property was stereo equipment, but did not state the value of the equipment.

In April 1976 appellant pled guilty in circuit court to the charge. At that time the state outlined a factual basis as required under Fla.R.Crim.P. 3.170(j); however, no mention was made of the value of the property involved, and no evidence of the value was before the court. The trial court withheld adjudication and placed appellant on probation for two years.

In March 1977 appellant’s probation supervisor filed an affidavit charging him with violating his probation. After a hearing, the court found appellant guilty of the violation. Appellant’s probation was extended to four years and a special condition was added. This appeal ensued with appellant contending the trial court was without subject-matter jurisdiction from the outset.

The threshold issue is whether appellant can raise the question of subject-matter jurisdiction on this appeal. The state contends that appellant waived any objection to the information by not appealing the original order placing him on probation. We disagree. Appellant’s contention goes to whether the trial court had jurisdiction over the offense charged. Since lack of subject-matter jurisdiction is fundamental error, it can be raised at any time. Solomon v. State, 341 So. 2d 537 (Fla. 2d DCA 1977).

The information by which appellant was charged failed to allege that the property stolen was worth $100 or more; therefore, the crime charged was only a misdemeanor under Section 812.031(3). Since the circuit court does not have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case. Article V, Section 5(b), Florida Constitution; Section 26.012, Florida Statutes (1975). Therefore, any order entered by the circuit court was void. Pope v. State, 268 So. 2d 173 (Fla. 2d DCA 1972).

We note that this case is distinguishable from Caves v. State, 302 So. 2d 171 (Fla. 2d DCA 1974). In Caves the defendant, for the first time, challenged the sufficiency of the information to charge the crime of auto theft after the state had presented its case. The defendant contended that even though the information tracked the language of the statutory crime of auto theft, it was deficient because it did not contain the essential common-law element that the taking was with the intent to permanently deprive the owner of his property. We held that the defendant’s attack came too late, as the state had proved the necessary intent during the presentation of its case and the jury was properly instructed that such intent was an essential element of the crime.

Unlike Caves, the information in this case failed to allege the necessary statutory element (that the value of goods stolen was $100 or more) required to vest felony jurisdiction in the circuit court. Additionally, in the instant case there was no recitation of value in the factual basis outlined before the court, nor was there any other evidence before the court to supply the omitted allegation on this issue.

Since appellant 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.Stat. (1975):

(1) Whoever intentionally receives, retains, disposes, or aids in concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, commits an offense.

(2) If the property received is:

(a) Of the value of $100 or more;

the offender shall be deemed guilty of a felony of the third degree, punishable as provided in s. 775.084.

(3)If the property received is not described in subsection (2), the offender shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


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Citator

Cited By (13 total)

  • Carbajal v. State, 75 So. 3d 258 (Fla. 2011)
    …had committed a felony. See, e.g., Ex parte Reed, 101 Fla. 800, 135 So. 302, 303 (1931) (concluding that judgment of conviction by circuit court was void where indictment failed to show that the defendant was charged with a felony); Waters v. State, 354 So. 2d 1277, 1278 (Fla. 2d DCA 1978) (“Since the circuit court does not have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case.”); Pope v. State, 268 So. 2d 173, 175 (Fla. 2d DCA 1972) (explaining that an al…
  • Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)
    …previously been convicted or that the amount of marijuana exceeded five grams. The court pointed out that the information charged no more than a misdemeanor and held that the defect was jurisdictional. We reached the same result in Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978), even though the defect was not raised until an appeal from a probation revocation. The defendant had been purportedly charged with the felony of receiving stolen property, but there was no allegation of the value of the stolen pr…
  • Page v. State, 376 So. 2d 901 (Fla. 2d DCA 1979)
    …. This court has specifically held that a jurisdictional defect, such as that the action was brought in the wrong court, may be raised on appeal from an order revoking probation. Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979); Waters v. State, 354 So. 2d 1277 (Fla. 2d DCA 1978). Even though omission from an information of an essential element of a crime may be waived, where the omission results in the complete failure to allege a felony but clearly alleges only a misdemeanor, such a defect cannot be so c…

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