Bailey, Jr. v. State , 2016 Fla. App. LEXIS 3590 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed March 9, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-519
Lower Tribunal No. 10-27673
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Guy B. Bailey, Jr.,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Metschlaw, P.A. and Lawrence R. Metsch, for petitioner.
Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant
Attorney General, for respondent.
Before EMAS, LOGUE, and SCALES, JJ.
LOGUE, J.
Defendant, Guy B. Bailey, Jr., petitions this court for a writ of prohibition.
We deny the petition. Following a conviction of grand theft in the first degree, the
trial court entered a sentencing order which specified:
Defendant, Guy Bailey, is sentenced to six years’ probation. In
addition to all terms and conditions imposed upon probationers by
general law, I impose the special condition of restitution, payable to
[the victims] in the amount of $700,000.00. I hold out the prospect of
early termination of probation after the special condition is completed
if the defendant is otherwise in compliance with law. I must also
impose the mandatory court costs of $703.
The State and the defendant then each filed timely notices of appeal. This court
consolidated the appeals and although scheduled, oral argument on the appeal
remains pending at the time of this writing.
A dispute arose between the State and the defendant as to whether monthly
restitution payments were required under the sentencing order. While the appeal
was pending, a probation violation affidavit and violation report were filed. The
probation violation report contained the recommendation “that the offender’s
probation be modified to include a minimum monthly required payment.” The
defendant moved to stay the probation violation proceedings. The trial court denied
the motion and scheduled the probation violation during the pendency of the
underlying appeal. The defendant then filed a motion to cancel the probation
violation hearing, arguing that the trial court lacked subject matter jurisdiction. The
trial court denied the motion and this petition for writ of prohibition followed.
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The State asserts that the defendant’s failure to make monthly restitution
payments constitutes a violation of probation. Because the alleged failure to make
monthly restitution payments occurred after the imposition of the sentencing order,
the trial court has jurisdiction to determine whether the failure to make monthly
restitution payments is conduct constituting a violation of probation. Bush v. State,
369 So. 2d 674, 676-77 (Fla. 3d DCA 1979). In Bush, this Court addressed a case
involving “subsequent conduct of the defendant in violation of an unstayed order
of probation.” Id. at 677. We held that “[u]nder these circumstances . . . the general
rule that, during the pendency of any appeal, the trial court retains jurisdiction to
enforce the terms of an unsuperseded judgment is applicable so as to confer
authority upon the lower court to consider such an alleged violation and, if
appropriate, to revoke the probation in question.” Id. Given the facts before us, and
the lack of a stay of the underlying sentencing order on appeal, we find Bush
applicable and hold that the trial court has jurisdiction to proceed with the
probation violation hearing.
However, we note that in the probation violation report dated December 21,
2015, the probation officer “recommend[ed] that the offender’s probation 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,
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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 court.”); see also Bush, 369 So. 2d at 676 (“In Salomon we
held that the trial court could not unilaterally reconsider, amend, or revoke a
probationary sentence after an appeal had been taken to review it.”).
Accordingly, we deny the petition for writ of prohibition.
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