LAURA SALERNO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1990-09-20
No. 89-1758
HARRIS, J., and McNEAL, R.T., Associate Judge, concur.
567 So. 2d 503 Florida District Court of Appeal, Fifth District (1990) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Laura Salerno appealed her conviction for battery of a law enforcement officer, raising whether the trial court lost jurisdiction to impose sentence once her notice of appeal was filed prior to sentencing. The court held that the trial court retained concurrent jurisdiction to impose sentence during the appellate process and affirmed the conviction and probation order.


Holding

The trial court did not lose jurisdiction to impose sentence following the filing of a notice of appeal. Florida law permits appeals from either the adjudication of guilt or the sentence, or both, and the rules contemplated concurrent jurisdiction of the trial court to handle procedural matters including sentencing while the appeal is pending.


Headnotes

[1] A trial court retains jurisdiction to impose sentence after a notice of appeal has been filed from an adjudication of guilt, provided the sentence is imposed within a rea…

[2] Florida Rule of Appellate Procedure 9.140(b)(1)(A) permits an appeal from a final judgment adjudicating guilt.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“from the time a final judgment of guilt has been rendered and an appeal has been filed, up to the time the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the appellate court for procedural matters”

Establishes the rule that trial courts retain concurrent jurisdiction over procedural matters, including sentencing, during the pendency of an appeal from conviction

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On August 22, 1989, Salerno was adjudicated guilty of battery of a law enforcement officer. She filed her notice of appeal on August 25, 1989, before …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PETERSON, Judge.

PETERSON, Judge.

Laura Salerno appeals her adjudication of guilt of battery of a law enforcement officer following a jury verdict. We affirm.

On August 22, 1989, Salerno was adjudicated guilty of the offense, and on August 25, 1989, she filed her notice of appeal. By order dated November 7, 1989, the court withheld sentence and placed her on probation for five years. On December 24, 1989, while her appeal was pending, she filed a notice of appeal amended to include both the adjudication of guilt and the order of probation. '

The appellant raises the issue of whether the filing of a notice of appeal following adjudication of guilt, but prior to sentencing, deprives the trial court of jurisdiction to impose sentence. Rule 9.600, Florida Rules of Appellate Procedure, provides that, from the time a final judgment of guilt has been rendered and an appeal has been filed, up to the time the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the appellate court for procedural matters. See Williams v. State, 324 So. 2d 74 (Fla.1975), for a discussion of when a judgment is rendered. Appellant argues that a sentence is a substantive matter and, that, therefore, the lower tribunal loses jurisdiction to impose sentence when the notice of appeal is filed.

Rule 9.140(b)(1)(A), Florida Rules of Appellate Procedure, permits an appeal from a final judgment adjudicating guilt. Sub-part (E) of the same rule permits an appeal of “a sentence when required or permitted by general law.” The rule allows an appeal from either pronouncement by a court. If a defendant wishes to file an appeal from both, Rule 9.140(b)(2) contemplates such procedure by allowing the appeal to be taken at any time between rendition of a judgment and 30 days following the entry of a written order imposing sentence.

The committee notes to Rule 9.140(b)(2) provide that, in a capital case, when a defendant appeals before entry of the written order imposing the sentence, the appellate court should hold the matter in abeyance until sentence has been imposed; this implies that the trial court does not lose jurisdiction to impose sentence. In the judicial arena, economy of both time and expense prefers one appeal; Rule 9.140(b)(2) recognizes that, as well as the committee note allowing the district courts to abate an appeal until sentence is rendered. Williams v. State, 324 So. 2d 74 (Fla.1975), also recognized this principle of abatement when it allowed a notice of appeal filed prior to rendition to exist in a state of limbo until the written judgment was rendered.

Should a sentence be delayed beyond a reasonable time, the appellate court may consider and rule upon an adjudication of guilt and allow the defendant to file a separate appeal of a sentence. Since Salerno had an adequate remedy of appeal for both the judgment and the sentence, and the delay in sentencing was not unreasonable, there exists no reason for the trial court to lose jurisdiction to sentence the defendant while the adjudication of guilt is on appeal.

We find no merit in the remaining issues raised on appeal.

AFFIRMED.

HARRIS, J., and McNEAL, R.T., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991)
    …until January 5, 1990. The state’s notice of appeal, filed on January 2, 1990, was premature and did not divest the trial court of jurisdiction to enter the order reducing sentence. See Williams v. State, 324 So. 2d 74 (Fla.1975); Salerno v. State, 567 So. 2d 503 (Fla. 5th DCA 1990). Finally, the state argues that the trial judge failed to cite clear and convincing reasons for departure. Clear and convincing reasons are required for a downward departure from the sentencing guidelines. Reimel v. State, 532 S…
  • Belcher v. State, 793 So. 2d 1033 (Fla. 5th DCA 2001)
    …PER CURIAM. AFFIRMED. See Salerno v. State, 567 So. 2d 503 (Fla. 5th DCA 1990). SHARP, W., PLEUS and ORFINGER, R.B., JJ., concur.…
  • Koleta v. State, 592 So. 2d 1267 (Fla. 2d DCA 1992)
    …ngly, the appellant’s notice of appeal filed before the judgment was entered was premature. The premature notice of appeal does not divest a trial court of jurisdiction. State v. Johns, 576 So. 2d 1332 (Fla. 5th DCA 1991); see also Salerno v. State, 567 So. 2d 503 (Fla. 5th DCA 1990). Therefore, the trial court had jurisdiction to enter the reasons for departure as well as the appellant’s judgment and sentence. We now address the three reasons given by the trial judge for the departure sentence. A review of…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw