          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1581
                 _____________________________

STATE OF FLORIDA,

    Appellant,

    v.

FLEM WILLIAMS,

    Appellee.
                  ___________________________

On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                         October 15, 2018


WINOKUR, J.

     The State appeals the trial court’s dismissal of Appellee’s
probation violation affidavit, arguing that it properly tolled
Williams’ probationary period pursuant to the version of section
948.06, Florida Statutes in effect at the time of Williams’ original
probation violation. While the State may be correct that the trial
court erred in dismissing the probation violations, it failed to
preserve the issue for appellate review. We also reject the State’s
argument that the jurisdictional issue addressed here can be
raised for the first time on appeal. As a result, we affirm.

                                 I.

    In 1987, Williams was charged with possession of cocaine
and resisting an officer. Williams entered a no-contest plea and
the trial court imposed a three-year probationary sentence. The
conditions of probation required Williams to pay certain costs.

     In 1991, three days before Williams’ probationary term was
set to expire, the State filed a violation of probation affidavit
alleging that Williams failed to pay the costs imposed and a
warrant was issued. Williams does not appear to have ever been
arrested on this warrant.

     Twenty-four years later, Williams was arrested for a
domestic-violence related battery in Georgia. In 2015, the State
filed an amended probation violation affidavit alleging that, in
addition to his failure to pay the costs of probation, Williams
violated his probation due to his battery arrest. A warrant was
issued and in 2017, Williams was arrested.

     Williams moved to dismiss the probation violation
proceedings on the ground that the State failed to properly toll
his probation because, pursuant to Mobley v. State, 197 So. 3d
572 (Fla. 4th DCA 2016), a warrant cannot toll probation for
technical violations. At a hearing on this motion, the State
conceded that Mobley required that the affidavit be dismissed,
but urged the trial court to “recede” from Mobley because it
improperly interpreted section 901.02, Florida Statutes, as it is
cited in section 948.06(1), Florida Statutes. The trial court then
granted the motion and dismissed Williams’ probation violations.

                               II.

     On appeal, the State does not argue that Mobley applied but
constituted an improper interpretation of the law. Instead, the
State argues that Mobley did not apply because Mobley
interpreted a version of section 948.06(1) that did not yet exist
when Williams violated his probation, and that at the time
Williams violated his probation, tolling occurred upon issuance of
a warrant, regardless of whether the violation was technical or
substantive. “[T]he specific legal ground upon which a claim is
based must be raised at trial and a claim different than that
raised below will not be heard on appeal.” Rodriguez v. State, 609
So. 2d 493, 499 (Fla. 1992). Because the argument raised on


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appeal is not the same as the one raised to support the objection
below, the State did not preserve this issue for appellate review.

                                III.

    The State also claims that this Court can consider the
argument because it involves jurisdiction, and jurisdictional
issues can be raised for the first time on appeal. We find this
argument unavailing here.

    It is true that the question of subject-matter jurisdiction may
generally be raised for the first time on appeal. See Hoffman v.
State, 729 So. 2d 421, 422 (Fla. 1st DCA 1999). This is because a
court acting beyond its jurisdiction may be committing
fundamental error. See Smith v. State, 521 So. 2d 106, 108 (Fla.
1988) (recognizing that “[t]he doctrine of fundamental error
should be applied only in rare cases where a jurisdictional error
appears or where the interests of justice present a compelling
demand for its application”). The State, however, misapprehends
why a jurisdictional argument may implicate fundamental error.
It is the lack of subject matter jurisdiction that may be
fundamental error and raised for the first time on appeal. See
Dep’t of Revenue v. Vanamburg, 174 So. 3d 640, 642 (Fla. 1st
DCA 2015). *



    *  See also Woods v. State, 879 So. 2d 651, 654 (Fla. 5th DCA
2004) (concluding that “lack of jurisdiction may not be cured by
consent, it is not subject to waiver and it can be raised at any
time, including the first time on direct appeal”); State v. Vesquez,
755 So. 2d 674, 677 (Fla. 4th DCA 1999) (finding that “[w]here a
court lacks the jurisdiction to take the action under attack on
appeal, the case is one involving fundamental error, so that no
objection is required in the trial court”); State v. Everett, 496 So.
2d 247, 249 (Fla. 3d DCA 1986) (affirming that “lack of subject
matter jurisdiction is fundamental error that can be raised at any
time”); Page v. State, 376 So. 2d 901, 904 (Fla. 2d DCA 1979)
(concluding that “[b]ecause lack of subject matter jurisdiction is
fundamental error and can be raised at any time, appellant can
raise it for the first time on this appeal”).

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     In this case, the State is not arguing that the trial court
lacked jurisdiction; it is arguing the opposite. The State argues
that it properly tolled Williams’ probationary period before it
expired, and that the trial court erred by finding that the State
did not properly toll probation and that the court consequently
did not have jurisdiction. The State relies on Tatum v. State, 736
So. 2d 1214 (Fla. 1st DCA 1999), to support its position that this
jurisdictional issue can be raised for the first time on appeal. The
issue in Tatum, however, was that the “trial court lacked
jurisdiction to revoke [defendant’s] probation . . . .” 736 So. 2d at
1214 (emphasis added). That is precisely why the court found
that the issue “may be raised for the first time on appeal” since it
involved “a jurisdictional defect.” Id. at 1215.

     Lack of jurisdiction constitutes fundamental error because a
trial court cannot act in excess of its authority, and failure to
correct that error “would undermine the integrity of our system of
justice.” Bain v. State, 730 So. 2d 296, 302 (Fla. 2d DCA 1999).

      Conversely, a trial court’s failure to exercise its own
authority does not trigger the concerns underpinning the doctrine
of fundamental error. Such an error is more akin to an abuse of
discretion, which requires preservation before it may be raised on
appeal. Therefore, the State may not raise this argument for the
first time on appeal.

                                IV.

     The trial court here chose not to exercise jurisdiction which it
appears to have had. An argument that the court erred in doing
so does not implicate fundamental error and cannot be raised for
the first time on appeal. As a result, we are constrained to affirm.

    AFFIRMED.

ROBERTS and ROWE, JJ., concur.




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               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant
Attorney General, and Anna Norris, Assistant State Attorney,
Tallahassee, for Appellant.

Andy Thomas, Public Defender, and Laurel Cornell Niles,
Assistant Public Defender, Tallahassee, for Appellee.




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