State ex rel. Salomon v. Sandstrom
| Decision Date | 15 August 1977 |
| Docket Number | No. 77-1570,77-1570 |
| Citation | 349 So.2d 696 |
| Parties | 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. |
| Court | Florida District Court of Appeals |
Max P. Engel, Fort Myers, David B. Javits, Miami, for petitioners.
Richard E. Gerstein, State Atty., and Paul Rashkind, Asst. State Atty., Robert L. Shevin, Atty. Gen., for respondent.
Before PEARSON, BARKDULL and HUBBART, JJ.
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 habeas 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...
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