Witnesses Not Available During a Hearing to Reduce Sentence
In Smith v. State, 471 So. 2d 1347 (Fla. 2d DCA 1985) the defendant filed a timely motion to reduce sentence, and a hearing was initiated before the sixty-day time limit expired.
Because certain witnesses were not available during the hearing, the judge continued the proceeding. Id. However, the judge was on vacation when the matter was reset, and the substitute judge refused to hear the matter. Id.
When the judge returned from vacation, he permitted the witnesses to testify but denied the motion based on lack of jurisdiction.
Relying on Golden, the Second District Court of Appeal granted the defendant's petition for writ of certiorari, holding that the judge should consider the motion on its merits because the judge had "effectively enlarged the time during which he could reconsider Smith's sentence by having commenced the hearing on Smith's timely motion within the sixty-day limit." Id. at 1348-49.