Page v. State

• Decision Date: 07 November 1979
• Docket Number: Nos. 78-946,78-947 and 78-948,s. 78-946
• Citation: 376 So.2d 901
• Parties: Wade Ray PAGE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 901

376 So.2d 901

Wade Ray PAGE, Appellant, v. STATE of Florida, Appellee.

Nos. 78-946, 78-947 and 78-948.

District Court of Appeal of Florida, Second District.

Nov. 7, 1979.

Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.

DANAHY, Judge.

Wade Ray Page appeals three judgments and sentences imposed after the trial judge revoked his probation. He argues that the circuit court lacked subject matter jurisdiction to impose one judgment and sentence because the information under which he was convicted charged only a misdemeanor; that all three judgments and sentences erroneously assessed court costs against him; and that the trial judge had no authority to order his prison terms to be served "at hard labor." We agree, reverse the judgment and sentence imposed without jurisdiction, and order the impermissible portions of the other judgments and sentences stricken.

Appellant was charged in separate informations with two instances of delivery of over five grams of cannabis and with receiving stolen property. The latter information charging a violation of Section 812.031 ¹ stated that appellant did unlawfully and feloniously receive, retain or aid in the concealment of certain stolen property, to-wit: a television, the property of Matt Kunish, the said Wade Ray Page then and there knowing at the time he so received, retained, or aided in the concealment of said property, as aforesaid, that said property was then and there stolen property, or under circumstances as would induce a reasonable man to believe that the property was stolen.

The trial court declared appellant to be insolvent and appointed the public defender to represent him. Appellant pled guilty to the delivery charges, and went to trial on the receiving stolen property charge. At trial in circuit court appellant rejected the further services of the public defender and chose to act as his own counsel, whereupon the public defender was discharged. During trial there was ample evidence introduced to support a verdict that the value of the stolen television set was over $100. During the state's case the prosecutor moved the trial court for leave to amend the information and asserted that the amendment would not be prejudicial to the defendant. The trial judge denied that request. Otherwise, with regard to the question of value, appellant made no objections, motions or requests for instructions. The trial judge did not mention value when he instructed the jury.

After the jury found him guilty, the trial court adjudged appellant to be guilty and ordered a probationary term of five years, the first year of which was to be served in a diagnostic treatment center. The two other pending charges resulted in orders of probation for seven and five years to run consecutively to the probationary term imposed on the stolen property conviction.

At a subsequent revocation hearing, appellant admitted he had violated the terms of his probation. Thereupon the court revoked all three orders of probation, imposed three consecutive five-year prison terms at hard labor, and assessed court costs against appellant.

On appeal, appellant urges that the information for receipt of stolen property charged only a misdemeanor; thus the circuit court had no jurisdiction over the case and all orders entered in that case, including the order of probation and the subsequent order revoking his probation and sentence of a prison term, are void. He also argues that the trial court had no authority in the other two cases to require his prison terms to be at hard labor, and that it was error to assess costs against him after he had been adjudicated insolvent. We agree.

With regard to the case of receiving stolen property, the state argues that appellant impermissibly seeks to attack proceedings prior to the order of probation in claiming that the information alleged only a misdemeanor. To demonstrate the impropriety of such an attack the state cites Section 924.06, Florida Statutes (1975), which provides that "(a)n appeal of an order revoking probation may review only proceedings After the order of probation. . . ." (Emphasis supplied). Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974); Stuart v. State, 353 So.2d 165 (Fla. 3d DCA 1978); Hardrick v. State, 293 So.2d 135 (Fla. 2d DCA 1974), Rev'd on other grounds, 313 So.2d 695 (Fla.1975). The state further contends that this issue was not presented to the trial court and must be presented in a motion to vacate judgment and sentence rather than by way of an appeal. We reject these arguments.

We note initially that appellant is not challenging the sufficiency of the evidence of his underlying conviction as in Hardrick nor is he assailing the conditions of his probation for the first time on this appeal from the trial court's orders revoking the probation as in Brown. Furthermore, appellant does not assert that his original guilty pleas were incompetently entered as in Stuart. Rather, appellant's argument is that he was charged with only a misdemeanor and that the circuit court which has jurisdiction over felony offenses had no jurisdiction over the offense with which he was charged.

Because lack of subject matter jurisdiction is fundamental error and can be raised at any time, appellant can raise it for the first time on this appeal of his judgment and sentence following revocation of his probation. Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977). 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 cured and the felony court wherein 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 (...