State v. Brown, V--460
| Decision Date | 05 March 1975 |
| Docket Number | No. V--460,V--460 |
| Citation | 308 So.2d 655 |
| Parties | STATE of Florida, Petitioner, v. Buster Dean BROWN, Respondent. |
| Court | Florida District Court of Appeals |
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for petitioner.
John W. Tanner, Daytona Beach, for respondent.
We here consider whether a Circuit Court has jurisdiction to modify the respondent's judgment and sentence. Respondent originally received a 10 month sentence on December 14, 1973, after pleading guilty to Count I of an information charging him with obtaining or attempting to obtain a narcotic drug or alteration. At the time the respondent entered his guilty plea, the State entered a nolle prosequi as to Count II of the information which charged the respondent with uttering a forged prescription. Respondent thereafter moved for a reduction of sentence which, although opposed by the State, was granted by an order of the trial court on April 8, 1974. That order reduced the respondent's 10 month sentence to a term of 114 days. The State then filed its petition for writ of certiorari to review the lower court's order of corrected judgment and sentence.
The State asserts that an order of corrected judgment and sentence must be made pursuant to Rule 3.800(b), RCrP which reads as follows:
'A court may reduce a legal sentence imposed by it at the same term of court at which it has been imposed, or if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition . . ..' 1
The record reveals that the original sentence was imposed during the fall term of the Circuit Court of Volusia County. By statute, the fall term of the Volusia County Circuit Court begins on the third Monday of October while the spring term begins on the second Monday in April. (F.S. 26.28) Uncomplicated computations disclose that the period of time between the imposition of the original sentence (December 14, 1973) and the conclusion of the fall term of court at which the original sentence was imposed exceeds 60 days: Therefore, in order for the order of corrected judgment and sentence to be valid, it must have been issued at the same term of court at which the original sentence was imposed.
The State argues that since the spring term of court began on April 8, 1974 (i.e. the second Monday in April), the fall term of court necessarily ended at midnight on the night of April 7, 1974. Therefore, according to the State, the April 8, 1974, order of the trial court could not have been issued at the same term of court at which the original sentence was imposed and is consequently invalid.
Respondent readily concedes that had April 7, 1974 fallen on a weekday, the order here in question would be void for lack of jurisdiction. However, respondent cites Rule 3.040, RCrP which provides in...
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