Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-3536 _____________________________ KEVIN PAUL LACK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Okaloosa County. Michael A. Flowers, Judge. January 26, 2022 B.L. THOMAS, J. Appellant challenges the circuit court’s jurisdiction over his 2020 misdemeanor DUI conviction, because it did not arise from the same circumstances as a prior 2018 domestic battery felony. He also argues that the circuit court erred by failing to grant his motion to withdraw his plea. We affirm the circuit court’s denial of his motion to withdraw his plea without further discussion, but reverse and remand the misdemeanor conviction. Whether a court has subject-matter jurisdiction is reviewed de novo. Jacobsen v. Ross Stores, 882 So. 2d 431, 432 (Fla. 1st DCA 2004). “The circuit court’s jurisdiction over misdemeanors is limited to those that ‘aris[e] out of the same circumstances as a felony which is also charged.’” Barlow v. State, 171 So. 3d 777, 778 (Fla. 2d DCA 2015) (quoting § 26.012(1)(d), Fla. Stat. (2020)); see also Art. V, § 5(b), Fla. Const. Here, during Appellant’s arrest for violating a domestic violence injunction, officers noticed that he was impaired and arrested him for driving under the influence. Appellant’s misdemeanor charge did not arise out of the same circumstances as the underlying 2018 domestic battery felony. * See Hicks v. State, 990 So. 2d 684, 685 (Fla. 2d DCA 2008) (holding that misdemeanor possession of marijuana charge that occurred while Appellant was being arrested for a prior felony did not arise out of the same circumstances). Furthermore, Appellant’s acquiescence to the circuit court’s jurisdiction over the misdemeanor DUI charge did not provide the court with subject-matter jurisdiction. Seven Hills, Inc. v. Bentley, 848 So. 2d 345, 350 (Fla. 1st DCA 2003) (“Subject matter jurisdiction, which arises only as a matter of law, cannot be created by waiver, acquiescence or agreement of the parties, by error in inadvertence of the parties or their counsel, or by the exercise of the power of the court.”). Because the circuit court did not have jurisdiction over Appellant’s misdemeanor DUI charge, this Court must reverse and remand the conviction for further proceedings in the correct court. Ingraham v. State, 122 So. 3d 934, 935 (Fla. 2d DCA 2013); White v. State, 568 So. 2d 1318, 1319 (Fla. 2d DCA 1990). REVERSE and REMAND. * This outcome does not change where the misdemeanor charge was used to support Appellant’s violation of probation from the 2018 felony because violations of probation are considered separate and distinct from the conviction of a new charge. See Green v. State, 463 So. 2d 1139, 1140 (Fla. 1985) (addressing double jeopardy and stating that a defendant is not subject to conviction or punishment for his new criminal conduct during a revocation proceeding); see also State v. Roesle, 799 So. 2d 447, 447 (Fla. 1st DCA 2001). 2 LEWIS and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee. 3