# State v. Schlabach

> District Court of Appeal of Florida · January 5, 2009 · 1 So. 3d 1091

URL: https://www.frixlaw.com/law-library/cases/1601503

## Case

- **Full name:** STATE of Florida, Petitioner, v. Teresa SCHLABACH, Respondent
- **Court:** District Court of Appeal of Florida
- **Decided:** January 5, 2009
- **Citations:** 1 So. 3d 1091; 2009 Fla. App. LEXIS 26; 2009 WL 18683
- **Precedential status:** Published
- **Opinion:** Opinion by Flores
- **Judges:** Barzee Flores
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1601503

## Opinion text

BARZEE FLORES, MARY, Associate Judge.
On February 14, 2007, Schlabach was sentenced to five years imprisonment for a violation of probation. Fifty-four days later, Schlabach filed a motion to reduce or modify her sentence. On May 14, 2007, a notice of hearing was filed and on May 30, 2007, the trial court heard and granted the motion, terminating the balance of Schla-bach’s sentence.
This court has adopted the view that where a motion to mitigate is timely filed, but no hearing is scheduled and no action is taken within sixty days after imposition of sentence, the trial court loses jurisdiction to do so.
Hussey v. State,
739 So.2d 123, 124 (Fla. 4th DCA 1999) (citing
Grosse v. State,
511 So.2d 688 (Fla. 4th DCA 1987);
see also State v. Grandstaff,
927 So.2d 1085, 1036 (Fla. 4th DCA 2006)) (“This rule has been construed to require reduction or modification within the sixty-day period, irrespective of the timeliness of a motion.”)
Here, because no hearing was scheduled and no action was taken within the sixty day period, the trial court lacked jurisdiction to modify the sentence.
We treat this as a petition for certiorari,
State v. Blue,
603 So.2d 648 (Fla. 5th DCA 1992), grant the petition, quash the order, and certify direct conflict with
Childers v. State,
972 So.2d 307 (Fla. 2d DCA 2008).
FARMER and KLEIN, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1601503. Public record. Not legal advice.