STATE OF FLORIDA, APPELLANT,
v.
JAMES SHARP, APPELLEE
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The trial court lacked jurisdiction to accept a change of plea and impose a sentence while an appeal was pending, and erred by not providing written reasons for a downward departure sentence.
The state appealed a non-final order, and during the pendency of that appeal, the trial court accepted the defendant's guilty plea and entered a downw…
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PER CURIAM.
The state appeals a downward departure sentence which the trial court entered on October 5, 1989, while this court had jurisdiction over the state’s appeal of a non-final order granting the Defendant’s Motion to Suppress. The mandate reversing the order and returning jurisdiction to the trial court did not issue until November 3, 1989.
We hold that the trial court did not have jurisdiction on October 5, 1989, to accept the Defendant’s change of plea to guilty and render a final order of sentence disposing of the case. Fla.R.App.P. 9.130; M.A. Feldman & Co. v. Cohen, 537 So. 2d 720 (Fla. 4th DCA 1989) (citing Hirschhorn v. Superior Realty of Florida, 450 So. 2d 510 (Fla. 4th DCA 1984)). The state contends, and Appellee concedes, that the trial court also erred in entering a downward departure sentence without providing clear and convincing written response for doing so. We agree.
Recognizing that the Appellee’s change of plea to guilty was predicated upon the trial court entering a downward departure sentence, we find controlling State v. Brown, 542 So. 2d 1371 (Fla. 4th DCA 1989). Accordingly, we vacate the sentence imposed and remand with instructions to resentence Appellee. See State v. Allen, 557 So. 2d 960 (Fla. 4th DCA 1990).
REVERSED and REMANDED.
LETTS, GLICKSTEIN and DELL, JJ„ concur.
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VME Grp. Int'l, LLC v. THE Grand Condo. Ass'n, Inc., 44 Fla. L. Weekly D2420 (Fla. 3d DCA 2020)…vacatur by the appellate court. Id.; see also Richardson v. State, 257 So. 3d 605, 606 (Fla. 1st DCA 2018); Jimenez v. State, 215 So. 3d 1259, 1259-60 (Fla. 3d DCA 2017); Leatherwood v. State, 168 So. 3d 328, 330 (Fla. 3d DCA 2015); State v. Sharp, 564 So. 2d 217, 217 (Fla. 4th DCA 1990).4 4 We are aware that, absent a stay, during the pendency of appellate review of a non- final order, Florida Rule of Appellate Procedure 9.130(f) expressly authorizes a trial Therefore, we vacate the trial court’s January…
Authorities Cited
- Waters v. State, 542 So. 2d 1371 (Fla. 3d DCA 1989)
- Hirschhorn v. Superior Realty OF Fla., Inc., 450 So. 2d 510 (Fla. 4th DCA 1984)
- State v. Allen, 557 So. 2d 960 (Fla. 4th DCA 1990)
- M.A. Feldman & Co., Inc. v. Jacques Cohen & Lancetti Cosmetics, Inc., 537 So. 2d 720 (Fla. 4th DCA 1989)
- Arne v. State, 537 So. 2d 720 (Fla. 1st DCA 1989)