Evans v. State , 229 So. 2d 261 ( 1969 )

229 So. 2d 261 (1969)

Kathy Lou EVANS, Petitioner,
v.
STATE of Florida, Respondent.

No. 38992.

Supreme Court of Florida.

December 10, 1969.

Tobias Simon, Miami, for petitioner.

Richard E. Gerstein, State's Atty., Roy S. Wood, Asst. State's Atty., Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for respondent.

ADKINS, Justice.

By petition for writ of certiorari, petitioner seeks review of the opinion of the District Court of Appeal, Third District, reported in 225 So. 2d 548.

Petitioner was adjudged guilty and sentenced to ninety-nine years in prison on March 25, 1966. On May 17, 1966, a motion to mitigate the sentence was filed on her behalf, pursuant to the provisions of Fla. Stat., § 921.25, now superseded by Rule 1.800(b), Fla.Cr.P.R., 33 F.S.A.

An appeal was taken and the mandate of the District Court of Appeal affirming the judgment and sentence was filed April 21, 1967.

On March 18, 1969, the trial court entered an order on the previously filed motion to mitigate sentence, reducing the prison term to time served and placing defendant on probation for ten additional years. Upon petition for certiorari brought by the State to review this order, the District Court of Appeal correctly concluded that the trial court proceeded without jurisdiction. The order was quashed and the trial judge directed to return Kathy Lou Evans to the proper authorities for incarceration, pursuant to the lawful sentence entered March 25, 1966.

Petitioner contends that a class of constitutional or state offices is affected. A decision of the District Court of Appeal simply adhering to jurisdictional time limits is not one affecting a class of constitutional offices as contemplated by Art. V, § 4, Fla. Const. (1968), F.S.A.

The petition also fails to establish conflict jurisdiction as contemplated by Art. V, § 4, Fla. Const. (1968).

Petitioner, by motion to mitigate the sentence, attempted to secure a "judicial parole." This is a matter for the executive branch, not the judiciary, and her remedy, if any, is with the Probation and Parole Commission.

The petition for writ of certiorari is denied.

ERVIN, C.J., and ROBERTS, DREW and BOYD, JJ., concur.