Ware v. State
| Citation | 231 So.2d 872 |
| Decision Date | 24 February 1970 |
| Docket Number | No. 69--693,69--693 |
| Parties | Donald Frank WARE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jack R. Nageley, and Harvey S. Swickle, Miami, Beach, for appellant.
Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and SWANN, JJ.
The appellant was originally informed against in the Criminal Court of Record in and for Dade County by the filing of several informations. He ultimately pleaded guilty and was sentenced to two years as to each of five crimes referred to in the informations, with the sentences to run concurrently. Some five months after he began to serve these sentences, he was returned before the trial court on a motion to mitigate (in June of 1965) and placed on five years' probation. His probation was subsequently revoked in 1968 for alleged violation of probation. He was then re-sentenced to five years each on the five convictions, the first four to run consecutively for a total of twenty years, with the last five year sentence to run concurrently. He ultimately filed a petition, pursuant to Rule 1.850, Cr.P.R., 33 R.S.A., contending that the court erred upon revoking his probation and sentencing him to a term longer than the original sentences. Upon denial of his petition, he has prosecuted this appeal.
We find no merit in the contentions raised in the petition before the trial court. Wilson v. State, Fla.App.1967, 194 So.2d 33; Ruiter v. State, Fla.App.1967, 205 So.2d 556. We are concerned about what appears to be a fundamental jurisdictional problem that appears in this record, i.e., the power of the trial judge to recall the appellant before him after he had commenced the service of his sentence and after the expiration of the time provided for in § 921.25, Fla.Stat., F.S.A.; Rule 1.800, Cr.P.R., and in mitigating the sentence imposed. This was not raised in the trial court, but it is a fundamental error which is apparent on the record and, therefore, is reviewable by this court. Florio v. State ex rel. Epperson, Fla.App.1960, 119 So.2d 305, 80 A.L.R.2d 1117; Ritter v. Miami Marine Agency, Inc., Fla.App.1961, 133 So.2d 107; Casey v. Smith, Fla.App.1961, 134 So.2d 846; Rule 3.7, subd. i, F.A.R., 32 F.S.A.
The limits and control of a criminal trial judge over sentences once imposed have recently been the subject of an opinion by this court in State v. Evans, Fla.App.1969, 225 So.2d 548...
To continue reading
Request your trial
-
State v. Migdahl
...(Fla.1st DCA 1975); Smith v. State, 289 So.2d 410 (Fla.4th DCA 1974); Sayer v. State, 267 So.2d 42 (Fla.4th DCA 1972); Ware v. State, 231 So.2d 872 (Fla.3d DCA 1970); Jefferson v. State, 320 So.2d 827 (Fla.4th DCA 1975); State v. Evans, 225 So.2d 548 (Fla.3d DCA 1969), cert. den. 397 U.S. 1......
-
Robbins v. State, 76-2264
...See De La Paz v. State, 358 So.2d 1093 (Fla. 3d DCA), cert. denied, 359 So.2d 1220 (Fla.1978); Williams v. State, supra; Ware v. State, 231 So.2d 872 (Fla. 3d DCA 1970). Accordingly, the order appealed is reversed and the cause remanded to the trial court with directions to discharge the ap......
-
State v. Sotto, 77-39
...1st DCA 1975); Smith v. State, 289 So.2d 410 (Fla. 4th DCA 1974); Sayer v. State, 267 So.2d 42 (Fla. 4th DCA 1972); Ware v. State, 231 So.2d 872 (Fla. 3d DCA 1970); Jefferson v. State, 320 So.2d 827 (Fla. 4th DCA 1975); State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969), cert. den. 229 So.2d ......
-
Travelers Exp., Inc. v. Acosta
... ... HENDRY, J., dissents ... --------------- ... 1 (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the ... ...