STATE OF FLORIDA, APPELLANT,
v.
JOSE ANTONIO LAPICA-FALCON, APPELLEE
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The trial court lacked jurisdiction to modify a sentence after the sixty-day period following the appellate mandate had expired, rendering the modification order a nullity.
The appellee was found guilty and sentenced to five years in prison, a sentence affirmed on appeal. The trial court later attempted to reduce this sen…
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CAMPBELL, Acting Chief Judge.
Appellant, State of Florida, appeals the trial court order that reduced appellee’s sentence from five years in prison to three-and-one-half years in prison.
The state argues: (1) The trial court lacked jurisdiction to rule on a motion to mitigate sentence; and (2) the trial court erred in departing downward from appel-lee’s five-year sentence. We find reversible error in the first issue, making the second issue moot.
The trial court found appellee guilty of possession of cocaine, delivery of cocaine and conspiracy to traffic in cocaine on February 12,1985. The court sentenced appel-lee to five years in prison on each charge to be served concurrently. This court affirmed appellee’s judgment and sentence on appeal and the trial court received this court’s mandate on July 18, 1986.
Under Florida Rule of Criminal Procedure 3.800, a court may only correct or modify a legal sentence within sixty days of receiving an appellate court’s mandate affirming the judgment or sentence. The trial court must act within that time. State v. Mancil, 354 So. 2d 1258, 1259 (Fla. 2d DCA 1978); State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969).
Since the trial court here received this court’s mandate on July 18, 1986, it had only until September 16, 1986, to rule on any motion to mitigate. The court did not do so until October 6, 1986, thus rendering its order reducing appellee’s sentence to three-and-one-half years a nullity. See Mancil.
Because we have found the order reducing appellee’s sentence to be a nullity, appellant s second point concerning the propriety of the downward departure is made moot.
We, therefore, remand this cause to the trial court with instructions to reinstate the original sentence.
HALL and FRANK, JJ., concur.
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Dixon v. State, 616 So. 2d 61 (Fla. 3d DCA 1993)…la.1991); Marsh v. State, 497 So. 2d 954 (Fla. 1st DCA 1986); Davenport v. State, 414 So. 2d 640 (Fla. 1st DCA 1982); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980), subject to limited exceptions not applicable here. See State v. Lapica-Falcon, 519 So. 2d 57, 58 (Fla. 2d DCA 1988). See generally The Florida Bar, Florida Appellate Practice § 4.2 (2d ed. 1986); The Florida Bar, Florida Criminal Rules and Practice, Rule 3.800 Commentary; Philip J. Padovano, Florida Appellate Practice, Suppl. §§ 20.11, 20.2…
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Dominguez v. State, 556 So. 2d 499 (Fla. 1st DCA 1990)…ellant’s judgment and sentence. The fact that appellant filed the motion within the sixty day period is not the determinative fact since the rule requires that action be taken within sixty days. Rule 3.800(b), Fla. R.Crim.P.; State v. Lapica-Falcon, 519 So. 2d 57 (Fla. 2d DCA 1988); Grosse v. State, 511 So. 2d 688 (Fla. 4th DCA 1987); and Wells v. State, 495 So. 2d 1221 (Fla. 1st DCA 1986). Appellant’s reliance on dicta in Sanchez v. State, 541 So. 2d 1140 (Fla.1989), to the effect that Rule 3.800(b) require…
Authorities Cited
- State v. Evans, 225 So. 2d 548 (Fla. 3d DCA 1969)
- State v. Carlie Nolan Mancil, Jr., 354 So. 2d 1258 (Fla. 2d DCA 1978)