STATE OF FLORIDA, PETITIONER,
v.
ALLEN ALFRED ENGLISH, III, RESPONDENT
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Florida's petition for certiorari is granted and the trial court's order reducing a three-year prison sentence to six years probation is quashed because granting probation does not constitute a valid reduction or modification of sentence under Florida law.
A trial court may not reduce a sentence by substituting probation for imprisonment, even within the sixty-day modification period, because granting probation does not constitute a correction or reduction of a legal sentence.
[1] A trial court may not modify a sentence by substituting probation for imprisonment, even within the sixty-day modification period permitted by Florida Rule of Criminal Pr…
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Join FLexlaw to unlock all legal intelligenceRespondent pled guilty to sixteen counts of forgery and uttering forged instruments and was placed on probation. After violating probation, he was sen…
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HOBSON, Acting Chief Judge.
The State of Florida seeks a writ of certiorari to quash an order of the trial court which amended the sentence imposed against the respondent from a term of imprisonment to probation.
Respondent pled guilty to sixteen counts of forgery and uttering a forged instrument. As a result, the court placed him on probation. Shortly thereafter, respondent was charged with violating his probation, to which he pled guilty. On October 3, 1980, he was sentenced to three years in the state penitentiary, with all sentences to run concurrently. Respondent filed a petition for reconsideration of his sentence, and on October 29 the court entered an order granting his petition and placing the respondent on six years probation.
It is clear that the sentencing court retains jurisdiction to “reduce or modify” any legal sentence within sixty days of imposition. Fla.R.Crim.P. 3.800(b). While we recognize that the reconsideration of the sentence was timely, Florida courts have adopted the federal approach holding that the granting of probation does not constitute the correction or reduction of a sentence. Cuneo v. State, 335 So. 2d 278 (Fla. 1976); Sweeting v. State, 390 So. 2d 773 (Fla. 3d DCA 1980); accord, Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980); see Whitfield v. United States, 401 F. 2d 480, 482 (9th Cir. 1968), cert. den., 393 U.S. 1026, 89 S.Ct. 630, 21 L.Ed. 570 (1969); Phillips v. United States, 212 F. 2d 327 (8th Cir. 1954).
Accordingly, we grant the writ of certiorari and quash the order of the trial court which purported to reduce respondent’s sentence.
OTT and RYDER, JJ., concur.
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Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)…utive terms of five years imprisonment. Appellant now contends that he could not be sentenced for a violation of probation because the court was without jurisdiction to originally place him on probation. This case is controlled by State v. English, 400 So. 2d 570 (Fla. 2d DCA 1981), in which this court held that a trial judge had no authority to change a prison sentence into probation. The premise for the ruling was that the granting of probation did not constitute the reduction of a sentence as then authori…
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Spain v. State, 849 So. 2d 340 (Fla. 2d DCA 2003)…e, but he did [*342] not state how he wanted it modified. While that rule did give the court jurisdiction to vacate Spain’s sixty month sentence, it did not give it jurisdiction to increase his sentence some eight months later. See State v. English, 400 So. 2d 570, 571 (Fla. 2d DCA 1981); see also Wolfson v. State, 437 So. 2d 174, 175 (Fla. 2d DCA 1983). The State may also reinvoke a circuit court’s jurisdiction under Florida Rule of Criminal Procedure 3.170(g) if a defendant fails to comply with the specifi…
Authorities Cited
- Phillips v. United States, 212 F.2d 327 (8th Cir. 1954)
- Olcott v. Bynum, 17 Wall. 44 (U.S. 1872)
- Gen. Time Corp. v. Sec. & Exch. Comm'n, 393 U.S. 1026 (U.S. 1969)
- Whitfield v. United States, 393 U.S. 1026 (U.S. 1969)
- Whitfield v. United States, 401 F.2d 480 (9th Cir. 1968)
- Cuneo v. State, 335 So. 2d 278 (Fla. 1976)
- Stoddard v. State, 388 So. 2d 11 (Fla. 2d DCA 1980)
- Sweeting v. State, 390 So. 2d 773 (Fla. 3d DCA 1980)