TISDOL V. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2004 ** BYRON J. TISDOL ** Appellant, ** vs. CASE NO. 3D03-1031 ** THE STATE OF FLORIDA ** LOWER TRIBUNAL NO. 93-2188 94-5876 ** Appellee. Opinion filed July 7, 2004. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge. Bennett H. Brummer, Public Defender, and Rosenthal, Assistant Public Defender, for appellant. Bruce A. Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee. Before COPE, GERSTEN and FLETCHER, JJ. PER CURIAM. Byron relief. J. Tisdol appeals an order denying We reverse for further proceedings. postconviction Defendant-appellant Tisdol is incarcerated on County circuit court case numbers 93-2188 and 94-5876. Miami-Dade He filed a motion for postconviction relief arguing, among other things, that the sentence in the 1994 case exceeded the legal maximum or was otherwise invalid. In preparing its response in this court, the State candidly pointed out that the sentences the defendant received upon revocation of probation on September 22, 1998 appear to exceed the amount provided by his plea agreement approved by the court on April 15, 1998. The April 15 plea agreement resolved an earlier affidavit of violation of probation and provided that in the event of any further violation, the sentenced to seventeen years imprisonment. defendant would be Upon adjudication of a subsequent violation of probation at the hearing conducted September 22, 1998 the court imposed consecutive sentences in excess of the seventeen year term. The State acknowledges that unless there was a subsequent modification of the April 15, 1998 plea agreement, the defendant would be entitled to be resentenced in accordance with the terms of the April 15, 1998 agreement. Accordingly we remand for further proceedings to determine if there was any subsequent modification to the April 15, 1998 plea bargain and if not, to resentence the defendant according 2 to the agreement. If there was a subsequent modification then the subsequent modification would, of course, control. The defendant also argues that his term of probation in the 1994 case expired prior to the filing violation of probation in mid 1998. of the affidavits of He argues that the trial court lost jurisdiction in the 1994 case and that his sentence See Francois v. in the 1994 case must therefore be vacated. State, 695 So. 2d 695 (Fla. 1997). At the time the trial court imposed its initial probationary disposition in the 1994 case, the defendant was of juvenile age. The court s oral pronouncement was that the defendant met the criteria of, and qualified as, a serious delinquent child. TR. July 27, 1994, at 14. 39.058, Fla. Stat. (1993). serious or jurisdiction habitual of Rehabilitative discharged. what Under the applicable statute, a delinquent was Services See §§ 39.01(46), then until child the age remained Department twenty-one See id. § 39.059(4)(c). under of or the Health and until sooner The written disposition order in the 1994 case, however, stated that the defendant was being committed to the Department until he was nineteen or until sooner discharged. Order, July 27, 1994. When the State filed its affidavits of violation in mid 1998 in both cases, the defendant was twenty years old. He argues that under the terms of the written sentencing order, 3 jurisdiction expired in the 1994 case when he turned nineteen, the previous year. He thus argues that his sentence in the 1994 case must be vacated. We disagree. At the original disposition, the trial court twice stated that the defendant qualified as a serious delinquent child. We conclude that disposition was imposed as a serious delinquent child and that jurisdiction over the defendant continued until See § 39.059(4)(c), Fla. the defendant s twenty-first birthday. Stat. (1993). That being so, we reject the claim that the court s jurisdiction in the 1994 case expired on the defendant s nineteenth birthday. otherwise, it does To the extent that the written order says not accurately reflect the court s oral part, and remanded for pronouncement. Affirmed in part, reversed in further proceedings consistent herewith. 4

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