County Criminal Court: CRIMINAL PROCEDURE—Jurisdiction; once the trial court terminated supervision it lost jurisdiction to reinstate appellant's probation.  This is so even if the court terminated appellant's probation due to a mistake by another agency- there has been no allegation made that appellant perpetrated a fraud upon the court. Order vacated. Vanhout v. State, CRC0303924CFAES, (Fla. 6th Cir. App. Ct. November 3, 2005).








            Appellant,                                           Case No: 03-03924CFAES

                                                                        Lower No: 02002213MMAES









Appeal from verdict, judgment and sentence Pasco County Court


County Judge Robert P. Cole


Joy K. Goodyear, Esq., A.P.D.

Attorney for Appellant


Dustin Anderson, Esq., A.S.A.

Attorney for Appellee




            This matter came before the court on defendant's appeal from a  judgment and sentence entered by the Pasco County Court.  Appellant claims that the trial court committed reversible error by granting the state's motion to correct sentence and adding restitution as a condition of probation after the sentence had been entered and by reinstating Ms. VanHout's probation after she had successfully completed her probationary term.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   This Court, having reviewed the briefs, the record, and being otherwise fully advised, finds that the order of the trial court reinstating probation should be vacated. 

            Appellant was convicted of battery on June 26, 2003.  The trial judge stated: "Here's the sentence: It will be an adjudication of guilt, one year of probation.  Conditions of your probation are that you pay a fine of $250, court costs of $121, that you attend and complete anger management counseling, pay a $200 Public Defender fee.  I will agree to early termination of your probation upon successful completion of those conditions.  What this means is, you can take up to 11 months to do this stuff or do it quicker and save on probation fees." The state then asked for restitution and the following transpired:


            STATE: And there is restitution involved in this case.


            COURT:What's the restitution?


            STATE: $800


            COURT: For what?


            STATE: The necklace and the-


            COURT: You should have charged her with theft, counsel. I don't know what she            did       with the necklace. The evidence was she tore it off somehow and then it       disappeared.


            STATE: But there was also evidence that she left with the necklace.


            COURT: Well, then charge her with theft if you-all want to do that.  I am not        going   to order restitution for $800.  I don't - you know, first of all, I don't know         that that's the proper amount.  Second of all, I don't believe it's appropriate. If you            want to charge            her with stealing the necklace, do it, but I am not going to make           [the victim] well on a battery charge, because I don't believe that there is enough proof, in my mind, to show           that she took the necklace.  She might have ripped it            off and dropped it.  So, that's             the sentence.  . . .


            On July 8, 2003, the State filed a Motion to Correct Sentence, in which it alleged that there was evidence that the necklace was damaged and lost as a result of the battery and that witnesses testified that the replacement cost of the jewelry was $800.  The State argued that Florida Statute 775.089 provides, in pertinent part: "In addition to any punishment, the Court shall order the Defendant to make restitution to the victim for damage or loss caused directly or indirectly by the Defendant's offense, unless it finds clear and compelling reasons not to order such restitution...if the Court does not order restitution or orders restitution of only a portion of the damages, as provided in this section, it shall state on the record in detail the reasons therefor. "  The state further argued that the court may modify a legal sentence imposed by it to included any of the provisions of Chapter 948 within sixty days of the imposition pursuant to Florida Rule of Criminal Procedure 3.800.  Per Florida Statute 948.032, restitution qualifies as one such provision which the court may include in a sentence modification.

            On July 17, 2003, the court heard the state's Motion to Correct Sentence and add restitution.  At that hearing, the state argued that a sentence without restitution was subject to modification. The state also argued that they need only prove that the necklace was damaged or loss, due to the battery, by a preponderance of the evidence. The defense argued that the state 'dropped the ball' and that if they were claiming this necklace the proper avenue would have been to charge her with petit theft or criminal mischief. Additionally, the defense argued that there was no proof as to the cost of the item. The court advised counsel that the state would have to prove the value at a restitution hearing. The court granted the motion to correct sentence and told the state to set a hearing; the court then stated "I believe that I was incorrect not, at least, considering restitution. . . . And if I feel that there are damages as a result of Ms. VanHout's actions, then I will make that part of her probation that she pay for the necklace."  A notice of heaering to determine restitution was filed on July 30, 2003 and the  hearing was scheduled for August 18, 2003.   

            On August 4, 2003, the court signed an order terminating Ms. VanHout's probation pursuant to her probation officer's request to terminate "as all conditions have been satisfied."

            On August 18, 2003, the restitution hearing was held and the court ordered restitution in the amount of $800.[1]

            On August 25, 2003, the state filed a Motion to Reinstate Probation and set a hearing for September 4, 2003. The motion alleged that the termination of probation was done improperly because as of July 17 restitution was made a condition of her probation and this condition was not satisfied as of August 4, the date of termination. At the hearing the defense argued that the court lacked jurisdiction to modify probation after it announced that probation was terminated. The court asked "what if probation was terminated mistakenly? Probation shouldn't have been -- once I granted the motion to--let's see.  On July 17, she was still on probation then. Her probation shouldn't have been terminated without restitution being made."

            The defense argued that this was an enhancement, and the court must first find there has been a violation of probation before it can enhance or increase the conditions.

The trial court disagreed stating:

            Well, I disagree with that.  In this particular case, I didn't require restitution because I felt that it didn't apply.  The state filed a motion to correct sentence and convinced me that it did apply, and that's why I corrected the sentence to show that she will  be required to pay restitution.  So, the motion is granted.  Now I expect them to take an appeal from this, but I think it's very clear that the motion   to correct sentence was granted prior to the probation being terminated. So it would appear to me that the probation was terminated in error, not because she has successfully completed the probation, and then I added something after she had been terminated from probation.


            The court ordered the probation to be reinstated and further ordered it be one year from the date of June 26, 2003, which was the date that she was convicted at trial.  This Court finds that the trial court erred.

            Florida Rule of Criminal Procedure 3.800 allows a trial court to modify a legal sentence so long as it is within a sixty day window from the time of the sentencing, including restitution. Bunch v. State, 745 So. 2d 400 (Fla. 5th DCA 1999).  As argued by the state, the absence of a restitution order pursuant to section 775.089(1)(a), Florida Statute, can render a sentence incomplete and subject to modification, so long as it is within the sixty day window. Critton v. State, 619 So. 2d 495 (Fla. 1st DCA 1993).  It is undisputed that restitution was ordered within the sixty day window.  The real issue in this case is whether or not the trial court may enter an order reinstating probation once a final order terminating probation has been entered.   It appears that a court may reinstate probation after a final order of termination only under very limited circumstances. Specifically, an order of discharge may only be set aside where there is evidence of extrinsic fraud upon the court by defendant. Driscoll v. State, 538 So. 2d 1283 (Fla. 1st DCA 1989) (only a final order of discharge affected with extrinsic fraud such as to render it void ab initio  may be set aside because it is of no force and effect from its inception) ; See also,  K.E.H. v. State, 802 So. 2d 395 (Fla. 4th DCA 2001)(order reinstating appellant's probation reversed since the trial court had unequivocally terminated it three weeks prior). In this case, there has been no allegation made that appellant perpetrated a fraud upon the court.  In fact, there is no evidence at all that the defendant played any role in the termination of probation or even had knowledge that probation was to be terminated. Therefore, this Court finds, once the trial court terminated supervision it lost jurisdiction to reinstate appellant's probation.  This is so even if the court terminated appellant's probation due to a mistake by another agency. It is therefore,  

            ORDERED AND ADJUDGED that the Order Reinstating Probation is REVERSED.   

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  November,  2005.


                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge




                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:

Office of the Public Defender

Office of the State Attorney



[1] Apparently, the parties agreed on restitution in the amount of $800.