JOHN BIVINS, PETITIONER,
v.
HONORABLE ROBERT MAKEMSON, RESPONDENT
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PER CURIAM.
We choose to treat the petition for writ of mandamus as a petition for writ for common law certiorari. We grant the writ and remand for the trial court to exercise its jurisdiction to sentence petitioner to probation pursuant to section 958.04(4)(e), Florida Statutes (1989), subject to condi tions of probation deemed appropriate by the sentencing judge.
The statute is substantive law which conflicts with Rule 3.800(b), Florida Rules of Criminal Procedure. The statute controls over the rule. State v. Garcia, 229 So. 2d 236 (Fla.1969). Under the statute, once petitioner satisfactorily completed the basic training program for youthful offenders, the trial court had jurisdiction to modify the sentence imposed and place petitioner on probation even after the sixty day limit of the rule. In any event, we hold that the sentence imposed can be modified because a trial court retains jurisdiction when it approves an offender’s participation in the basic training program. § 958.04(4)(c) and (e), Fla.Stat. (1989).
This opinion is without prejudice to the State to raise the issue of the constitutionality of section 958.04(4)(e).
WARNER, POLEN and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blackwelder v. State, 647 So. 2d 991 (Fla. 2d DCA 1994)…r trial court to exercise jurisdiction to rule on motion filed pursuant to rule 3.800(b)); Marsh v. State, 497 So. 2d 954 (Fla. 1st DCA 1986) (certiorari granted for trial court to consider motion for modification on the merits); Bivins v. Makemson, 567 So. 2d 45 (Fla. 4th DCA 1990) (certiorari granted for trial court to exercise its jurisdiction to sentence youthful offender). . The statute has been renumbered as 947.16(4).…
Authorities Cited
- State v. Domingo Garcia, 229 So. 2d 236 (Fla. 1969)