THE STATE OF FLORIDA, APPELLANT,
v.
KATHLEEN B, MAGRATH, APPELLEE
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The State appealed a trial court's post-sentencing modification that withheld adjudication and reduced Magrath's sentence after she had already been adjudicated guilty and sentenced. The appellate court dismissed the appeal for lack of jurisdiction, holding that the State cannot appeal a lawful sentence imposed within the trial court's Rule 3.800(b) authority, even if the sentencing modification raises important legal questions.
The appellate court has no jurisdiction to review the trial court's modification. The State may appeal an illegal sentence or a sentence imposed outside the sentencing guidelines, but since the sentence imposed on Magrath was lawful and the trial court acted within its Rule 3.800(b) authority, the State has no right to a direct appeal, and certiorari review is not available.
[1] A state may not appeal a lawful sentence imposed within the trial court's jurisdiction and time frame for modification.
[2] A district court lacks authority to review a matter by certiorari if the state does not have a right to a direct appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under Florida Rule of Appellate Procedure 9.140(c)(1), the state may appeal an illegal sentence or a sentence imposed outside the guidelines range.”
Establishes the limited circumstances under which the State may appeal a sentence.
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Join FLexlaw to unlock all legal intelligenceKathleen Magrath pled guilty on September 8, 1986, to two counts of accepting unlawful campaign contributions and one count of improperly certifying h…
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JORGENSON, Judge.
Kathleen Magrath pled guilty on September 8, 1986, to two counts of accepting unlawful campaign contributions and one count of improperly certifying her campaign report. She was adjudicated guilty and sentenced to three concurrent one-year terms of probation and 750 hours of community service.
The trial court on November 4, 1986, sua sponte, modified Ma-grath’s sentence.
Pursuant to Florida Rule of Criminal Procedure 3.800(b), the trial court withheld adjudication and reduced the probation period to one year and the community service to 350 hours.1 The question whether a trial court may mitigate a sentence under Rule 3.800(b) and withhold adjudication, having not withheld adjudication originally, was certified to this court by the county court pursuant to Florida Rule of Appellate Procedure 9.160, and the state brought a direct appeal.
Both the state and Magrath ask us to resolve a conflict they perceive between Thompson v. State, 485 So. 2d 42 (Fla. 1st DCA 1986), and State v. Beardsley, 464 So. 2d 188 (Fla. 4th DCA 1985).2 Notwithstanding their perception and agreement that the issue is one of great public importance, the parties cannot confer jurisdiction on this court by agreement.
Under Florida Rule of Appellate Procedure 9.140(c)(1), the state may appeal an illegal sentence or a sentence imposed outside the guidelines range. The state concedes that the sentence imposed upon Magrath is lawful. The state further concedes that the trial court had jurisdiction within the time period set forth in Rule 3.800(b) to modify the sentence. A direct appeal by the state, therefore, will not lie. Nor can this court allow certiorari. McIntosh v. State, 496 So. 2d 120 (Fla.1986). McIntosh held that, unless the state has a right to a direct appeal, a district court is without authority to afford review by way of certiorari. On the authority of McIntosh, therefore, we dismiss the instant appeal.
Appeal dismissed.
. Although the trial court had the authority to do so, the better practice when modifying a sentence is a formal proceeding with the parties and a reporter present. The state makes no due process argument.
. Were we to rule on the merits, we would follow Judge Zehmer’s well reasoned opinion in Thompson v. State, 485 So. 2d 42 (Fla. 1st DCA 1986), and reject the rationale of State v. Beardsley, 464 So. 2d 188 (Fla. 4th DCA 1985). We hasten to add, however, that we do not perceive a conflict between the two opinions. According to the facts of Beardsley, the trial court acted well outside the 60-day jurisdictional time frame in clear violation of Rule 3.800(b).
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State v. Smith, 596 So. 2d 168 (Fla. 1st DCA 1992)…by appeal or extraordinary writ, of an order which denied a motion to vacate an order terminating community control without notice to the State. We have now considered the State’s motion for rehearing and find that our reliance on State v. Magrath, 517 So. 2d 29 (Fla. 3d DCA 1987) was misplaced in light of State v. Pettis, 520 So. 2d 250 (Fla.1988); see also State v. Rhodes, 554 So. 2d 1229 (Fla. 2d DCA 1990). Accordingly, we withdraw our prior opinion and accept common law certiorari jurisdiction of case…
Authorities Cited
- McINTOSH v. State, 496 So. 2d 120 (Fla. 1986)
- Wilson v. State, 485 So. 2d 42 (Fla. 5th DCA 1986)
- State v. Beardsley, 464 So. 2d 188 (Fla. 4th DCA 1985)