Pickman v. State
| Decision Date | 09 July 1963 |
| Docket Number | No. 62-627,62-627 |
| Citation | 155 So.2d 646 |
| Parties | Jack PICKMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Garber & Chadroff, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Herbert P. Benn, Asst. Att. Gen., for appellee.
Before BARKDULL, C. J., and PEARSON, TILLMAN, and HENDRY, JJ.
The appellant was convicted on four charges of issuing worthless checks. He plead 'not guilty' in each case and waived jury trial. The trial court found the appellant guilty without adjudication and placed him on probation in each case. The sequence of the court's action, which is important to this decision, was as follows.
The appellant was tried in the first three cases which were numbered 60-8189, 60-8190 and 60-8208 on April 3, 1961. At the conclusion of the trial the appellant was placed on probation for a period of one year in each case. The order granting probation was dated April 3, 1961, and was duly recorded in the Criminal Court of Record Minute Book on that date.
On November 2, 1961, the appellant was tried in the fourth case which was No. 61-1833. At the conclusion of this trial, the court entered an order granting probation in that case but the period of probation was set at two years.
On April 18, 1962, for reasons not shown in the record, the court entered an order extending the period of probation in all four cases. A separte order was entered in each case. In cases numbered 60-8189, 60-8190 and 60-8208, the order in each case provided that the period of probation be 'extended for an additional period of six (6) months on the original order granting probation, without adjudication, dated April 3, 1961,'. In case No. 61-1833 the order entered the same day provide for the extension for six months on the original order dated November 2, 1961.
Appellant's first point, which applies only to the first three cases on which original probation was for one year, is that the order extending the period of probation was ineffective because it was entered after the court had lost jurisdiction of the defendant in each case. It is urged that inamuch as the original order in each case was entered on April 3, 1961, and ran for a period of one year, that it therefore expired at Midnight on April 2, 1962. It will be noted from the facts given that the order extending probation in these three cases was entered on April 18, 1962. This point calls for an application of § 948.04, Fla.Stat., F.S.A. The section is as follows:
[Emphasis supplied.]
We think that appellant's position must be sustained under the holding in State ex rel. Ard v. Shelby, Fla.App.1957, 97 So.2d 631, in which it was held that upon expiration of the probationary period, the court is divested of all jurisdiction of the person of the probationer unless in the meantime, the processes of the court have been set in motion for revocation or modification of the probation.
The appellee suggests that since the record in this case fails to show there could not have been a setting in motion of the processes of the court within the period of time of the original probation; therefore we must presume that there was some action by the court within the period of the original probation. We note, however, that the appellant has specifically directed that the transcript of record include every entry in the minutes of the court having to do with these three cases to indicate that the in the court's minutes to indicate that the court took any action prior to April 18, 1961. We think that under the statute for a court to have jurisdiction to revoke probation the record of that court must show affirmative action taken during the original probationary period. Cf. Carroll v. Cochran, Fla.1962, 140 So.2d 300. We therefore reverse the judgments and sentences in cases numbered 60-8189, 60-8190 and 60-8208.
There remains for consideration the judgment and...
To continue reading
Request your trial
-
Florida Rules of Criminal Procedure., In re
...he may extend this period to the maximum if he acts prior to the expiration of the initially-set probationary period. (Pickman v. State, 155 So.2d 646 (1st D.C.A.1963). This means, therefore, that any specific time set by the court as to the probationary period is not binding on the court i......
-
Buckbee v. State
...acquiesced in it. See D'Agostino v. State, 334 So.2d 99 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1080 (Fla.1977); Pickman v. State, 155 So.2d 646 (Fla. 3d DCA 1963), cert. denied, 164 So.2d 805 (Fla.1964). Thus, the sequence of events is not properly viewed as one in which an "additional......
-
Yates v. Buchanan
...was left in effect for more than four years. See State ex rel. Ard v. Shelby, Fla.App.,App.1957, 97 So.2d 631; Pickman v. State, Fla.App.,App.1963, 155 So.2d 646. It follows that the initial sentence was no longer enforceable and that no further sentence could be imposed. Under those circum......
-
Watt v. State, V--379
...filed and recorded order. Ellis v. State, 100 Fla. 27, 129 So. 106 (1930); Shargaa v. State, 102 So.2d 809 (Fla.1958); Pickman v. State, 155 So.2d 646 (Fla.App.3d, 1963), cert. den. 164 So.2d 805 (Fla.1964); Roy v. State, 207 So.2d 52 (Fla.App.2d, 1968), cert. dism. 211 So.2d 554 (Fla.1968)......