JOEL ZIEGLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The defendant appealed an order denying his motion for early termination of probation under Florida Statute Section 948.05. The court held that such orders are non-appealable because early termination of probation is a matter of grace, not a legal right, and the advisability of sentence modifications is not subject to appellate review.
An order denying early termination of probation is non-appealable because the authority to grant such relief is entirely a matter of grace, and the advisability of sentence modifications is not subject to appellate review.
[1] An order denying a motion for early termination of probation is non-appealable because the authority to grant such relief is a matter of grace.
[2] The advisability, as opposed to the legality, of a particular sentence is not subject to appellate review.
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Join FLexlaw to unlock all legal intelligence“Since the authority conferred upon the court by Section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable.”
Establishes the core holding that early termination of probation is discretionary and appeals from denial of such motions are not permitted.
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Join FLexlaw to unlock all legal intelligenceThe defendant had a lawfully imposed ten-year period of probation and filed a motion pursuant to Section 948.05, Fla.Stat. (1977) seeking early termin…
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SCHWARTZ, Judge.
The defendant has appealed an order denying his motion, filed pursuant to Section 948.05, Fla.Stat. (1977), for early termination of a ten-year period of probation which had been previously and lawfully imposed. Since the authority conferred upon the court by Section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable. Just as the defendant could not have complained to an appellate court if he had been initially denied probation altogether, see Bernhardt v. State, 288 So. 2d 490, 494 (Fla.1974); Arnold v. State, 356 So. 2d 862, 863 (Fla. 1st DCA 1978), so, a fortiori, he may not secure review of a refusal to reduce an already existing probationary term. This conclusion is required by the principle that the advisability, as opposed to the legality, of a particular sentence is not subject to appellate review, e. g., Banks v. State, 342 So. 2d 469 (Fla.1976); Infante v. State, 197 So. 2d 542 (Fla. 3d DCA 1967), and, even more plainly, by those cases which hold that no appeal may be taken from the denial of a motion for a reduction of sentence filed under Fla.R.Crim.P. 3.800. Hallman v. State, 371 So. 2d 482 (Fla.1979), affirming, 343 So. 2d 912 (Fla. 2d DCA 1977); Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978); Parker v. State, 214 So. 2d 632 (Fla. 2d DCA 1968).1
Appeal dismissed.
. We reject the appellant’s contention that jurisdiction is conferred by Fla.R.App.P. 9.140(b)(1)(C), which provides that a defendant may appeal from “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation.” The order below clearly falls into neither of the latter, expressly-named, categories, and we do not read the provision as a whole to apply to orders such as the one before us, or those denying relief under Fla.R.Crim.P. 3.800. Surely, if the supreme court, in adopting the “new” appellate rules, meant to overrule the many cases cited in the text which hold that such orders are not appealable, it would have said so much more clearly. See also the provisions of Section 924.06, Fla.Stat. (1977), which do not provide for an appeal from such an order.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985)…appeal from a nonap-pealable order — the denial of a motion for reduction of sentence. Hallman v. State, 371 So. 2d 482 (Fla.1979), affirming 343 So. 2d 912 (Fla. 2d DCA 1977); Bertone v. State, 388 So. 2d 347 (Fla. 1st DCA 1980); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980); Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978). We can and do, however, treat this appeal as a petition for writ of certiorari. Generally, a court has no jurisdiction to modify a legal sentence after the passage of sixty day…
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Grosse v. State, 511 So. 2d 688 (Fla. 4th DCA 1987)…tence may not be appealable. Hallman v. State, 371 So. 2d 482, 484 (Fla.1979), affirming 343 So. 2d 912 (Fla. 2d DCA 1977); Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985); Davenport v. State, 414 So. 2d 640 (Fla. 1st DCA 1982); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980). The cases cited in the majority opinion are procedurally distinguishable from the instant case and do not involve appeals from such an order. For example, Mancil, Golden, and this court’s Smith opinion involved appeals by the sta…
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Dixon v. State, 616 So. 2d 61 (Fla. 3d DCA 1993)…r, Hallman v. State, 371 So. 2d 482, 484 (Fla.1979), overruled on other grounds, Jones v. State, 591 So. 2d 911 (Fla.1991); Marsh v. State, 497 So. 2d 954 (Fla. 1st DCA 1986); Davenport v. State, 414 So. 2d 640 (Fla. 1st DCA 1982); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980), subject to limited exceptions not applicable here. See State v. Lapica-Falcon, 519 So. 2d 57, 58 (Fla. 2d DCA 1988). See generally The Florida Bar, Florida Appellate Practice § 4.2 (2d ed. 1986); The Florida Bar, Florida Criminal…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Howard Banks v. State, 342 So. 2d 469 (Fla. 1976)
- Infante v. State, 197 So. 2d 542 (Fla. 3d DCA 1967)
- Hallman v. State, 343 So. 2d 912 (Fla. 2d DCA 1977)
- Parker v. State, 214 So. 2d 632 (Fla. 2d DCA 1968)
- Arnold v. State, 356 So. 2d 862 (Fla. 1st DCA 1978)
- Suggs v. State, 358 So. 2d 897 (Fla. 2d DCA 1978)
- THE Florida BAR v. Lewis, 358 So. 2d 897 (Fla. 1st DCA 1978)