Shanklin v. State, 78-654

• Court: Court of Appeal of Florida (US)
• Citation: 369 So.2d 620
• Docket Number: No. 78-654,78-654
• Parties: James Earl SHANKLIN, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 09 March 1979

Page 620

369 So.2d 620 James Earl SHANKLIN, Appellant,
v.
STATE of Florida, Appellee. No. 78-654. District Court of Appeal of Florida, Second District. March 9, 1979.
As Modified on Denial of Rehearing April 11, 1979.

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

Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.

Page 621

GRIMES, Chief Judge.

This is an appeal from a revocation of probation and subsequent sentence to five years imprisonment.

The appellant was originally charged with battery of a law enforcement officer contrary to Section 784.07, Florida Statutes (1976 Supp.). The information stated that appellant "did unlawfully and intentionally touch or strike a law enforcement officer. . . . " Appellant pled guilty and was placed on probation. He was later charged with probation violation for filing his monthly reports late, for failing to make payments for the costs of supervision, and for committing the offenses of battery, resisting arrest and battery of a police officer.

At the revocation hearing, the appellant's supervisor testified that appellant had filed his reports late for several months and that he was $40 in arrears on the costs of supervision. The supervisor acknowledged that appellant had told him that he was unable to work because of an injury and that he could not find a job. Appellant admitted both of these violations but explained that he could only work part time because of two previous stomach operations. He added that he made payments for costs of supervision when he could afford them. No evidence was presented concerning the criminal violations. The court revoked appellant's probation on all these grounds and sentenced him to the maximum penalty of five years in the state prison.

Appellant first attacks his conviction on the basis that the court originally lacked subject matter jurisdiction to place appellant on probation. Appellant argues that because the information failed to allege that he "knowingly" struck a law enforcement officer he was never charged with a felony which would give the circuit court jurisdiction. The state points out that appellant failed to make this objection at the time he was originally placed on probation and that he is raising it for the first time on this appeal from the revocation order.

In Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978), the information charging "battery on (a) police officer" was worded practically the same as the information in the instant case, though the Radford information referred to the misdemeanor statute proscribing battery. Our court held that because the information contained no allegation that the defendant had "knowingly" struck an officer, it alleged no more than the misdemeanor of simple battery. Hence, the circuit court had no subject matter jurisdiction, and the judgment was void. Even though the defect was not raised in the trial court, it was deemed jurisdictional and not subject to cure by waiver or consent. Accord Englund v. State, 368 So.2d 86 (Fla. 2d...