Opinion
No. 1D99-4429.
Opinion filed May 1, 2000.
An appeal from an order of the Circuit Court for Gadsden County, William L. Gary, Judge.
Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
The trial court revoked appellant's probation and sentenced him to a term of 12 years incarceration. On appeal, appellant argues that the trial court acted in the absence of jurisdiction since the violation of probation warrant was not delivered to the sheriff for execution until the day after the probationary term expired. See State v. Boyd, 717 So.2d 524 (Fla. 1998). Although this argument was not presented to the trial court, an error of this sort is fundamental in nature. See Tatum v. State, 736 So.2d 1214 (Fla. 1st DCA 1999). The state properly concedes that under the circumstances, appellant is entitled to relief. Accordingly, we vacate the revocation of probation and the judgment and sentence imposed thereon. No motion for rehearing will be entertained, and the clerk is directed to issue mandate forthwith.
ERVIN, VAN NORTWICK and BROWNING, JJ., concur.