Harrell v. State, 721 So. 2d 1185 (Fla. 5th DCA 1998). · Go Syfert
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Harrell v. State, 721 So. 2d 1185 (Fla. 5th DCA 1998). Cases Citing This Book View Copy Cite
“the doctrine of waiver cannot be effective when the court lacks jurisdiction over the case itself.”
17 citation events (16 in the last 25 years) across 2 distinct courts.
Strongest positive: Metellus v. State (fladistctapp, 2002-05-31)
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Metellus v. State (2×) also: Cited as authority (rule)
Fla. Dist. Ct. App. · 2002 · quote attribution · 1 verbatim quote · confidence high
the doctrine of waiver cannot be effective when the court lacks jurisdiction over the case itself.
cited Cited as authority (rule) Anderson v. State
Fla. Dist. Ct. App. · 2012 · signal: cf. · confidence medium
Cf. Harrell v. State, 721 So.2d 1185, 1187 (Fla. 5th DCA 1998) (stating that lack of jurisdiction cannot be cured by consent or waiver).
cited Cited as authority (rule) Holmes v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
Fla. R. of App. P. 9.100(h); Harrell v. State, 721 So.2d 1185,1187 (Fla. 5th DCA 1998).
discussed Cited as authority (rule) Citizens Property Ins. v. Scylla Properties
Fla. Dist. Ct. App. · 2006 · confidence medium
Co., 630 So.2d 179, 181 (Fla.1994) ("We acknowledge that the parties cannot stipulate to jurisdiction over the subject matter where none exists. . . ."); Aponte v. State, 896 So.2d 836, 837-38 (Fla. 1st DCA 2005) (reversing an order of a trial court which lacked jurisdiction to enter the order, even though the issue had not been raised to the trial court); Harrell v. State, 721 So.2d 1185, 1187 (Fla. 5th DCA 1998) (stating that lack of jurisdiction cannot be cured by consent).
discussed Cited as authority (rule) Hernandez v. KISSIMMEE POLICE DEPT.
Fla. Dist. Ct. App. · 2005 · confidence medium
Co., 630 So.2d 179, 181 (Fla.1994) ("We acknowledge that the parties cannot stipulate to jurisdiction over the subject matter where none exists...."); Harrell v. State, 721 So.2d 1185, 1187 (Fla. 5th DCA 1998) (holding that lack of jurisdiction cannot be cured by consent).
discussed Cited as authority (rule) Rodriguez v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Caraker v. Amidon, 68 So.2d 403 (Fla.1953) (holding that jurisdiction is conferred upon a court by the constitution or a statute and not by agreement between the parties); Harrell v. State, 721 So.2d 1185, 1187 (Fla. 5th DCA 1998)(holding that lack of jurisdiction cannot be cured by consent). [4] If, however, judgment is vacated on appeal and a new trial held, the sentence upon conviction in the second trial can be greater than that imposed in the first provided the defendant's subsequent conduct justifies the greater sentence and retaliation for taking the appeal has not motivated the new sen…
discussed Cited as authority (rule) Metellus v. State
Fla. · 2005 · confidence medium
Co., 630 So.2d 179, 181 (Fla.1994) ("We acknowledge that the parties cannot stipulate to jurisdiction over the subject matter where none exists. . . ."); Harrell v. State, 721 So.2d 1185, 1187 (Fla. 5th DCA 1998) (holding that lack of jurisdiction cannot be cured by consent).
discussed Cited as authority (rule) Woods v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
P. 9.140(b)(2)(A)(ii)a. ("A defendant who pleads guilty or nolo contendere may otherwise directly appeal only . . . the lower tribunal's lack of subject matter jurisdiction. . . ."); Otero v. State, 793 So.2d 1115 (Fla. 4th DCA 2001); Winter v. State, 781 So.2d 1111 (Fla. 1st DCA), review denied, 799 So.2d 219 (Fla.2001); Harrell v. State, 721 So.2d 1185, 1186-87 (Fla. 5th DCA 1998) (citing C.W. v. State, 637 So.2d 28, 29 (Fla. 2d DCA 1994); Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986); Page v. State, 376 So.2d 901, 904 (Fla. 2d DCA 1979); Wesley v. State, 375 So.2d 1093, 1094 (Fla. 3d D…
cited Cited "see" Brown v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA), review dismissed, 728 So.2d 205 (Fla.1998); Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986).
cited Cited "see" Leslie v. Leslie
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Brinson v. State, 789 So.2d 1125, 1126 (Fla. 2d DCA 2001) (citing Harrell v. State, 721 So.2d 1185 (Fla. 5th DCA 1998)); see also Fla. R.App.
discussed Cited "see, e.g." Harris v. State
Fla. Dist. Ct. App. · 2003 · signal: see, e.g. · confidence medium
See, e.g., Harrell v. State, 721 So.2d 1185, 1186-87 (Fla. 5th DCA 1998); Novaton v. State, 610 So.2d 726 , 728 n. 3 (Fla. 3d DCA 1992), approved on other grounds, 634 So.2d 607 (Fla.1994); Wesley v. State, 375 So.2d 1093, 1094 (Fla. 3d DCA 1979).
Retrieving the full opinion text from the archive…
Wilson Tony HARRELL, Appellant,
v.
STATE of Florida, Appellee.
98-165.
District Court of Appeal of Florida, Fifth District.
Sep 18, 1998.
721 So. 2d 1185
W. Sharp.
Cited by 14 opinions  |  Published

[*1186] James T. Miller, Jacksonville, for Appellant.

No Appearance for Appellee.

W. SHARP, J.

Harrell appeals from the summary denial of his petition for a writ of coram nobis, which the trial court treated as a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Harrell argues that his conviction for being an accessory after the fact to first degree murder[1] should be set aside because at the time the trial court accepted his guilty plea (based on a plea agreement, to sentence him to time served) and adjudicated him guilty, it lacked jurisdiction to act. We think proper resolution of this question requires an evidentiary hearing.

Harrell's pleading alleged that he had been charged with first degree murder in 1978, for a death that occurred in 1975. When his trial resulted in a hung jury, the trial court declared a mistrial. Harrell did not agree, and when the court sought to reschedule a new trial, he filed a petition for prohibition in the appellate court.

The First District Court of Appeal issued an order to show cause on November 9,1978. Apparently unaware of the show cause order, Harrell agreed to plea to being an accessory and was adjudicated on December 20, 1978. Two days later on December 22nd, the First District denied Harrell's petition.

Harrell later became incarcerated in the federal prison system for unrelated crimes. While preparing for a federal parole hearing in 1996, he received documents which exonerated him in the 1975 murder and the accessory offense. He claims that his conviction as accessory impacts his parole chances. He also claims that in 1996 he first learned that the circuit court which accepted his plea and adjudicated him in 1978, lacked jurisdiction to do so. His attorney claimed he had previously informed Harrell of this jurisdictional defect.

The trial court ruled in this proceeding that Harrell's attorney's letter attached to his petition shows he had told Harrell about the jurisdictional defect "long ago." Further, it ruled that Harrell could have discovered the status of the writ of prohibition proceeding before entering his plea, and clearly could have done so more than two years prior to the filing of the petition. Thus it concluded, the newly discovered evidence argument was procedurally barred.

This petition raises a fundamental defect in Harrell's 1978 conviction, which if true, requires that it be set aside. See Oladipupo v. State, 574 So.2d 301, 302 (Fla. 5th DCA 1991); Zanger v. State, 548 So.2d 746, 748 (Fla. 4th DCA 1989); Young v. State, 439 So.2d 306, 308 (Fla. 5th DCA 1983); Brehm v. State, 427 So.2d 825 (Fla. 3d DCA 1983); Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977); Brown v. State, 284 So.2d 400 (Fla. 3d DCA 1973); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972).

Further, lack of jurisdiction can be raised at any time. C.W. v. State, 637 So.2d 28, 29 (Fla. 2d DCA 1994); Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986); Page v. State, 376 So.2d 901, 904 (Fla. 2d DCA 1979); Wesley v. State, 375 So.2d 1093, 1094 (Fla. 3d DCA 1979); Solomon; Waters v. State, 354[*1187] So.2d 1277, 1278 (Fla. 2d DCA 1978). Nor can lack of jurisdiction be cured by consent or waived by entry of a guilty plea. Akins v. State, 691 So.2d 587 (Fla. 1st DCA 1997); Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978); Pope. The doctrine of waiver cannot be effective when the court lacks jurisdiction over the case itself. Novaton v. State, 610 So.2d 726, 728 n. 3 (Fla. 3d DCA 1992); approved on other grounds, 634 So.2d 607 (Fla.1994).

Harrell's claim that the trial court lacked jurisdiction to accept his plea and adjudicate him is based on the principle that once an appellate court accepts discretionary review, the trial court's jurisdiction to act in a matter is lost. Payne v. State, 493 So.2d 1104 (Fla. 1st DCA), approved, 498 So.2d 413 (Fla.1986)(after discretionary review in the supreme court is sought, trial court and district court lose jurisdiction over the cause to the extent that the lower court's acts will affect the subject matter of the appeal). A petition for writ of prohibition divests a trial court of jurisdiction at the time the district court issues a show cause order. Allen v. State, 579 So.2d 200 (Fla. 2d DCA 1991).

The petition contains a certification by Harrell's current attorney that Harrell was convicted on December 20 1978, based on the appellate court's records, and that the appellate court had not at that point denied the writ, after issuing a show cause order. Aside from that certification, there is no evidence to refute those allegations, attached to the trial court's summary denial. Thus, an evidentiary hearing should be held to give Harrell the opportunity to submit proof of the relevant dates of his conviction and the prohibition proceedings in the appellate court.

REVERSED and REMANDED for evidentiary hearing.

GOSHORN and HARRIS, JJ., concur.

1 § 782.04, Fla. Stat. (1975).