DONALD E. WILSON
v.
STATE OF FLORIDA
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Donald E. Wilson appealed the summary denial of his motion to modify probation. The trial court erred by concluding it lacked jurisdiction to modify probation under Florida Rule of Criminal Procedure 3.800(c), when Wilson had actually filed under Florida Statutes section 948.03(2), which grants courts broad authority to modify probation terms at any time.
The trial court has jurisdiction to modify probation under Florida Statutes section 948.03(2), which authorizes courts to rescind or modify probation terms at any time. The trial court erred by mistakenly applying the jurisdictional limitations of Florida Rule of Criminal Procedure 3.800(c) when Wilson filed under the broader statutory provision.
[1] A trial court has discretion under Florida Statute section 948.03(2) to rescind or modify the terms and conditions of probation at any time, including before the probatio…
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Join FLexlaw to unlock all legal intelligence“The court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer.”
Section 948.03(2), Florida Statutes (2017), describing the court's authority over probation terms.
Wilson filed a motion to modify the terms and conditions of his probation sentence. The trial court summarily denied the motion, concluding it lacked …
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Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Christopher Nash, Judge.
Donald E. Wilson, pro se.
BADALAMENTI, Judge.
Donald E. Wilson appeals the summary denial of his motion to modify probation. Generally, an order denying a motion for modification of probation is not appealable. See Wesner v. State, 843 So. 2d 1039, 1040 (Fla. 2d DCA 2003).
However, such an order is subject to certiorari review when the lower court bases its denial on the mistaken belief that it did not have jurisdiction to consider the motion. Id.
As this is the circumstance here, we treat this appeal as a petition for writ of certiorari and grant the petition.
In summarily denying the motion, the postconviction court found that it lacked jurisdiction to modify Mr. Wilson's sentence pursuant to Florida Rule of Criminal Procedure 3.800(c) and that his motion was premature because he has not yet begun the probationary period of his sentence. However, Mr. Wilson did not file his motion pursuant to rule 3.800(c). He instead filed his motion pursuant to section 948.03(2), Florida Statutes (2017), which states that "[t]he court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer." (Emphasis added.) By concluding that it did not have the discretion to modify Mr. Wilson's probation, the trial court departed from the essential requirements of law. Accordingly, we grant the petition for writ of certiorari and quash the order denying modification of probation. We express no opinion as to the merits of Mr. Wilson's modification of probation request.
Petition granted; order denying modification of probation quashed.
KELLY and LUCAS, JJ., Concur.