Sayer v. State

267 So. 2d 42 (1972)

Terrance SAYER, Appellant,
v.
STATE of Florida, Appellee.

No. 72-260.

District Court of Appeal of Florida, Fourth District.

September 26, 1972.

Walter N. Colbath, Jr., Public Defender, and Charles W. Musgrove, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal of an order revoking probation and sentencing defendant to 18 months in prison.

Defendant was charged with breaking and entering with intent to commit a misdemeanor. He was subsequently sentenced to one year in jail on September 17, 1971, after entry of a no contest plea. Defendant filed a motion to mitigate on October 19, 1971, which was granted on December 21, 1971. The trial court withdrew adjudication and sentence and placed defendant on three years probation. Defendant was later sentenced to 18 months for violation of probation.

The trial court was without jurisdiction to mitigate defendant's sentence because more than 60 days had elapsed since imposition of the sentence, F.R.Cr.Proc. 3.800 (b), 33 F.S.A., and the term of court during which it was imposed had expired, Laws of Florida, Ch. 59-877, § 3 (1959).

Upon authority of Ware v. State, Fla. App. 1970, 231 So. 2d 872, and State v. Evans, Fla.App. 1969, 225 So. 2d 548, cert. den. 229 So. 2d 261, we reverse and remand to the trial court with instructions to reinstate the original sentence of September 17, 1971, with credit for time served.

Reversed and remanded with directions.

WALDEN, OWEN and MAGER, JJ., concur.