Grose v. Stack

286 So. 2d 220

Opinion

286 So.2d 220 (1973)

Donald Hugh GROSE, Appellant,
v.
Edward STACK, Sheriff, As Custodian of Broward County Jail, Appellee.

No. 73-69.

District Court of Appeal of Florida, Fourth District.

December 7, 1973.

Raymond W. Russell, Fort Lauderdale, for appellant.

Philip S. Shailer, State's Atty., and Robert G. Cowen, Asst. State's Atty., Fort Lauderdale, for appellee.

DOWNEY, Judge.

The question involved on this appeal is whether a defendant, incarcerated as a result of the temporary revocation of probation, pursuant to 949.10, F.S. 1971, F.S.A., is entitled to be released from custody pending hearing, or completely discharged from the charge of violation of probation when he has not been afforded a hearing within ten days after his arrest.

When a person arrested for violation of the conditions of his probation, pursuant to 949.10, F.S. 1971, F.S.A., has not been afforded a hearing within ten days as mandated by 949.11, F.S. 1971, F.S.A., he is entitled to his "immediate release ... from incarceration on the temporary revocation", without bond, until such hearing is held. He is not entitled to be completely discharged or exonerated from the pending charge of violation of his probation.

Counsel have advised this court during oral argument that pending this appeal a hearing was held, defendant's probation was revoked and sentence imposed. Ordinarily we would dismiss the matter as moot without comment. However, at the request of counsel, so as to settle the interpretation of the statute involved, we have treated the question.

This appeal is dismissed as moot.

CROSS and MAGER, JJ., concur.