STATE OF FLORIDA, PETITIONER,
v.
TERESA SCHLABACH, RESPONDENT
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A trial court loses jurisdiction to modify a sentence if no action is taken within sixty days of imposition, even if a timely motion is filed.
Schlabach filed a motion to reduce her sentence 54 days after being sentenced. The trial court granted the motion 104 days after sentencing. This cour…
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On February 14, 2007, Schlabach was sentenced to five years imprisonment for a violation of probation. Fifty-four days later, Schlabach filed a motion to reduce or modify her sentence. On May 14, 2007, a notice of hearing was filed and on May 30, 2007, the trial court heard and granted the motion, terminating the balance of Schla-bach’s sentence.
This court has adopted the view that where a motion to mitigate is timely filed, but no hearing is scheduled and no action is taken within sixty days after imposition of sentence, the trial court loses jurisdiction to do so. Hussey v. State, 739 So.2d 123, 124 (Fla. 4th DCA 1999) (citing Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987); see also State v. Grandstaff, 927 So.2d 1085, 1036 (Fla. 4th DCA 2006)) (“This rule has been construed to require reduction or modification within the sixty-day period, irrespective of the timeliness of a motion.”)
Here, because no hearing was scheduled and no action was taken within the sixty day period, the trial court lacked jurisdiction to modify the sentence.
We treat this as a petition for certiorari, State v. Blue, 603 So.2d 648 (Fla. 5th DCA 1992), grant the petition, quash the order, and certify direct conflict with Childers v. State, 972 So.2d 307 (Fla. 2d DCA 2008).
FARMER and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Schlabach v. State, 37 So. 3d 230 (Fla. 2010)…PARIENTE, J. In this case, we review the decision of the Fourth District Court of Appeal in State v. Schlabach, 1 So. 3d 1091 (Fla. 4th DCA 2009), based on certified direct conflict with the decision of the Second District Court of Appeal in Childers v. State, 972 So. 2d 307 (Fla. 2d DCA 2008). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue is whether a…
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Graham v. State, 24 So. 3d 781 (Fla. 5th DCA 2009)…rt did not have a “meaningful opportunity to rule on his motion within the allotted jurisdictional time.” See also Howard v. State, 914 So. 2d 455, 456 (Fla. 4th DCA 2005). The Fourth District recently reiterated this position in State v. Schlabach, 1 So. 3d 1091 (Fla. 4th DCA 2009), certifying conflict with the Second District in Childers v. State, 972 So. 2d 307 (Fla. 2d DCA 2008). Following the supreme court opinion in Abreu v. State, 660 So. 2d 703 (Fla.1995), this court has consistently held that trial…
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Valencia Smith v. State, 26 So. 3d 644 (Fla. 4th DCA 2010)…PER CURIAM. The petition for writ of certiorari is denied on the authority of State v. Schlabach, 1 So. 3d 1091 (Fla. 4th DCA 2009). GROSS, C.J. WARNER and HAZOURI, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grosse v. State, 511 So. 2d 688 (Fla. 4th DCA 1987)
- Childers v. State, 972 So. 2d 307 (Fla. 2d DCA 2008)
- State v. Blue, 603 So. 2d 648 (Fla. 5th DCA 1992)
- Hussey v. State, 739 So. 2d 123 (Fla. 4th DCA 1999)