STATE OF FLORIDA EX REL. TEODULA PAZ SALOMON AND RAMON SALOMON, PETITIONERS,
v.
JACK O. SANDSTROM, DIRECTOR OF THE DADE COUNTY DEPARTMENT OF OFFENDER REHABILITATION, RESPONDENT
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The Florida District Court of Appeal held that a trial court lacks jurisdiction to modify a probation order while a judgment of conviction and probation order is pending on appeal. The court granted a writ of habeas corpus to release petitioners from unlawful custody based on an illegal probation modification entered by the trial court after notice of appeal was filed.
A trial court lacks jurisdiction to modify a probation order once a notice of appeal has been perfected and the matter is pending before an appellate court. The filing of a notice of appeal vests complete and exclusive jurisdiction in the appellate court, and the trial court has no authority to modify or revoke probation during the pendency of an appeal.
[1] A trial court lacks jurisdiction to modify a probation order while the judgment of conviction and probation order is on appeal before an appellate court.
[2] The filing of a notice of appeal vests in the appellate court complete and exclusive jurisdiction of the subject matter and of the parties to the appeal.
Previewing 2 of 5 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“the filing of a notice of appeal . . . vests in the appellate court complete and exclusive jurisdiction of the subject matter and of the parties to the appeal.”
Establishes the fundamental principle that appellate jurisdiction is exclusive once a notice of appeal is filed
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Join FLexlaw to unlock all legal intelligenceOn June 24, 1976, petitioners were charged with lottery violations. After a full trial on May 26, 1977, the jury found them guilty. On May 31, 1977, t…
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HUBBART, Judge.
This is an original petition for a writ of habeas corpus in which the petitioners [Teodula Paz Salomon and Ramon. Salomon] challenge the lawfulness of their present incarceration at the Dade County Jail in the custody of the respondent [Jack O. Sandstrom, Director of the Dade County Department of Offender Rehabilitation]. We issued a rule to show cause why the writ of habeas corpus should not issue against the respondent. The respondent has filed a return and the court has held a hearing on the petition and return. Chapter 79, Florida Statutes (1975).
The issue presented for review is whether a trial court has jurisdiction to modify a probation order entered in a criminal case while the judgment of conviction and probation order is on appeal before an appellate court of competent jurisdiction. We hold that the trial court lacks such jurisdiction and grant the petition for writ of habe-as corpus.
It appears without dispute that on June 24, 1976, the petitioners were charged with certain lottery violations before the Circuit Court of the Eleventh Judicial Circuit of Florida. On May 26, 1977, the jury found the petitioners guilty as charged after a full trial. Whereupon the trial court adjudicated the petitioners guilty and committed them to the custody of the respondent without bail pending sentencing.
On May 31, 1977, the petitioners were heard by the trial court on a petition for release from custody on their prior trial appearance bonds pending sentencing. The trial court took testimony, heard argument and thereafter placed the petitioners on five years probation subject to terms and conditions to be set forth by further order of the court. On June 23, 1977, the petitioners filed a timely notice of appeal to review the above judgment of conviction and probation order. On July 19, 1977, the trial court, over objection by petitioners’ counsel, modified the original order of probation by imposing special probationary conditions which required the petitioners to serve a total of four years in the state prison and sixty days in the county jail. This order was entered at a time when the judgment of conviction and probation order was before this court on appeal.
The law is clear that “the filing of a notice of appeal . . . vests in the appellate court complete and exclusive jurisdiction of the subject matter and of the parties to the appeal.” State of Florida ex rel. Faireloth v. District Court of Appeal, 187 So. 2d 890, 891 (Fla. 1966). After an appeal has been perfected in a criminal case and during the pendency of such appeal, a trial court has no jurisdiction to grant a motion for new trial, State ex rel. Hall v. Lewis, 88 Fla. 146, 101 So. 199 (1924), or to modify a finding of guilt, McCormick v. State, 153 Fla. 838, 16 So. 2d 49 (1943), or to revoke or alter a sentence such as an order of probation. See State ex rel. Brenner v. Dubitsky, 347 So. 2d 777 (Fla.3d DCA 1977).
The circuit court had no jurisdiction in the instant case to modify the original five year probation order because a notice of appeal from the judgment of conviction and sentence had been perfected and was presently pending before this court. This result is unchanged by the respondent’s contention that the petitioners’ appeal is subject to dismissal. The petitioners’ appeal remains pending before this court until dismissed or decided on the merits; while so pending, the trial court lacks jurisdiction to modify or revoke the original probation order under review. Accordingly, petitioners’ current detention in the custody of the respondent pursuant to the modification of probation is illegal from which the petitioners are entitled to immediate release. Thereafter, the petitioners shall be subject to the original five year probation order during the pendency of their appeal before this court. The habeas corpus petition is granted and the writ of habeas corpus shall issue forthwith releasing the petitioners from the custody of the respondent. It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
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Loeb v. State, 387 So. 2d 433 (Fla. 3d DCA 1980)…, the trial court interferes with the subject matter of the appeal which has been withdrawn until the appeal is heard and determined or the interim actions of the trial court are authorized by the appellate court. State ex rel. Salomon v. Sandstrom, 349 So. 2d 696 (Fla. 3d DCA 1977). For the foregoing reasons, there was no jurisdictional impediment to prohibit the trial court from entertaining an affidavit of probation violation and accepting the defendant’s plea to violation of the terms and conditions of t…
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Bell v. State, 60 So. 3d 558 (Fla. 5th DCA 2011)…d COHEN, JJ., concur. . During the pendency of this appeal, the trial court entered a new order in an apparent attempt to remedy this error. However, the trial court lacked jurisdiction to enter said order. See State ex rel. Salomon v. Sandstrom, 349 So. 2d 696 (Fla. 3d DCA 1977).…
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Bailey v. State, 187 So. 3d 911 (Fla. 3d DCA 2016)…bation be modified to include a minimum monthly required payment.” The trial court is without jurisdiction to effectuate a modification of the sentencing order until such time as the appeal before this Court has been concluded. Salomon v. Sandstrom, 349 So. 2d 696, 697 (Fla. 3d DCA 1977) (“The circuit court had no jurisdiction in the instant case to modify the original five year probation order because a notice of appeal from the judgment of conviction had been perfected and was presently pending before this…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Amos Lewis, 88 Fla. 146 (Fla. 1924)
- State of Fla. ex rel. Earl Faircloth v. The Dist. Court OF Appeal, 187 So. 2d 890 (Fla. 1966)
- McCormick v. State, 153 Fla. 838 (Fla. 1943)
- Ventura v. Serafina Freyre Ventura and Rosario Ventura, 347 So. 2d 777 (Fla. 3d DCA 1977)