Sanders v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARCUS SANDERS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Case No. 2D07-1241
Opinion filed May 8, 2009.
Appeal from the Circuit Court for Lee
County; Edward J. Volz, Jr., Judge.
James Marion Moorman, Public Defender,
and Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Ronald Napolitano,
Assistant Attorney General, Tampa,
for Appellee.
DAVIS, Judge.
Marcus Sanders challenges the amended judgments and sentences
entered in case numbers 00-CF-614, 00-CF-1964, and 00-CF-2894 after his probation
was revoked on December 8, 2006. Because Sanders already had fully completed his
original probationary sentences on his third-degree felony offenses in case numbers 00CF-614, 00-CF-1964, and 00-CF-2894, we reverse the orders revoking his probation as
to those counts. We affirm the revocation of Sanders' probation and the sentences he
received for his second-degree felony offenses in circuit court case number 00-CF2894.
Sanders originally pleaded no contest to five counts in three separate
cases and was sentenced on January 23, 2003. Sanders was sentenced to three years'
prison on all counts to run concurrently and to be followed by probation, the length of
which varied by the degree of each offense. The criminal mischief and attempted
burglary counts in case numbers 00-CF-614 and 00-CF-1964, as well as the aggravated
assault count in case number 00-CF-2894, were all third-degree felonies for which
Sanders received two-year terms of probation. Sanders received three-year terms of
probation on the second-degree counts of robbery and aggravated battery in case
number 00-CF-2894.
Although he repeatedly violated the conditions of supervision, the trial
court reinstated his probation after each violation. After Sanders completed the twoyear probationary terms he was serving on his third-degree felonies, but before he had
completed his remaining probation on the second-degree felonies, he was again alleged
to have violated conditions of supervision. On December 8, 2006, the trial court
revoked his probation in all cases and sentenced him to concurrent 108-month (nineyear) terms on all five counts, which was a slight downward departure from his lowest
permissible sentence of 111.6 months under the criminal punishment code scoresheet
that was prepared.
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The State has conceded that Sanders already had completed the
originally imposed two-year term of probation for all of his third-degree felonies prior to
the filing of the most recent affidavit of violation of probation. Pursuant to section
948.06, Florida Statutes (1997), the trial court only had jurisdiction to revoke his
probation and to sentence him on the second-degree offenses in case number 00-CF2894—those offenses for which he was still serving probation at the time of the alleged
violation. "[U]pon the expiration of the probationary . . . period, 'a court is divested of all
jurisdiction over the person of the probationer unless in the meantime the processes of
the court have been set in motion for revocation or modification of the probation . . . .' "
Stapler v. State, 939 So. 2d 1092, 1093 (Fla. 5th DCA 2006) (quoting State v. Hall, 641
So. 2d 403, 404 (Fla. 1994)).
Accordingly, we affirm the revocation of Sanders' probation and sentences
for the counts of second-degree robbery and aggravated battery in case 00-CF-2894.
On the remaining counts and sentences, we reverse and remand with instructions for
the trial court to strike the orders of revocation of probation and vacate Sanders'
sentences in cases 00-CF-614 and 00-CF-1964 and to strike the order of revocation of
probation and vacate the sentence for the third-degree aggravated assault count in
case number 00-CF-2894.
Affirmed in part; reversed in part; remanded with instructions.
NORTHCUTT, C.J., and VILLANTI, J., Concur.
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