Opinion
No. 79-567.
November 6, 1979.
Janet Reno, State Atty. and Milton Robbins, Asst. State Atty., for petitioner.
Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for respondent.
Before HENDRY, BARKDULL and SCHWARTZ, JJ.
This is a common law certiorari by the State to review an order of the trial court mitigating a sentence after sixty days had expired from the date the Supreme Court entered its final order in a certiorari proceeding, seeking the review of a District Court of Appeal opinion affirming the respondent's conviction. See: Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977); Adirim v. State, 365 So.2d 709 (Fla. 1978).
Florida Rule of Criminal Procedure 3.800(b) reads as follows:
"(b) A court may reduce a legal sentence imposed by it within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari."
. . . .
We hold that the rule means what it says, and it should be followed by the courts in Florida. See: Bryan v. State, 94 Fla. 909, 114 So. 773 (1927); Kinsey v. State, 179 So.2d 108 (Fla. 1st DCA 1965); State v. Lott, 286 So.2d 565 (Fla. 1973). Respondent contends that the trial court has sixty days from the filing of the final order of denial in the trial court, the same as it has sixty days from the receipt of a mandate of a district court of appeal. We disagree. The rules provide that a mandate be sent to a trial court. See: Florida Rules of Appellate Procedure 9.340(a). There is no similar requirement that a denial of certiorari be sent by the final appellate court to the trial court. Therefore, there is a clear reason for the distinction in the rule between receipt of a mandate and the entry of a final order by the last appellate forum.
The hearing and ruling in the instant case was within sixty days of a filing of a copy of the Supreme Court's order denying certiorari.
The order of the trial court not having been entered within the sixty-day period provided in the rule, it was a departure from the essential requirements of law and should be quashed. Even though this may appear to work a hardship on the respondent, it should be remembered that statutes of mitigation are a privilege or grace to a convicted defendant and are to be strictly construed. See: State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969); Ware v. State, 231 So.2d 872 (Fla. 3d DCA 1970); State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977); State v. Migdahl, 353 So.2d 635 (Fla. 3d DCA 1977); State v. Smith, 360 So.2d 21 (Fla. 4th DCA 1978); Sotto v. Wainwright, 601 F.2d 184 (5th Cir. 1979).
Therefore the order under review mitigating sentence be and the same is hereby quashed.