MAX DAILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Max Dailey appealed his guilty plea convictions for two counts of attempted first-degree murder, challenging the court's refusal to allow withdrawal and errors in sentencing. The court affirmed the convictions but remanded for correction of the sentence, finding that the original sentence was incomplete because it failed to include restitution as required by statute.
The court affirmed the convictions but remanded for correction of the sentence. The trial court lacked jurisdiction to enter the amended sentence after the notice of appeal was filed, but the original sentence was incomplete because it failed to comply with the statutory requirement to order restitution. On remand, the trial court may impose restitution to make the sentence legally complete, but cannot add a probationary term, as doing so would constitute an unauthorized enhancement.
[1] A trial court is divested of jurisdiction to amend a sentence once a notice of appeal has been filed.
[2] A sentence that fails to include restitution or state reasons for its omission is incomplete.
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Join FLexlaw to unlock all legal intelligence“Once the notice of appeal had been filed, the trial court was divested of jurisdiction.”
Establishes that the trial court lost authority to modify the sentence after appeal was filed
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Join FLexlaw to unlock all legal intelligenceDailey was charged with attempting to murder his former wife, Eloise Phillips, and her husband, Jack Phillips. He changed his plea from not guilty to …
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SCHEB, Acting Chief Judge.
Appellant Max Dailey pled guilty to two counts of attempted first-degree murder with a firearm. Dailey challenges the court’s refusal to allow him to withdraw his plea of guilty and alleges errors in the sentencing process. We affirm the convictions but remand for corrections in his sentence.
Dailey was charged with attempted premeditated murder of his former wife, Eloise Phillips, and her husband, Jack Phillips. After he changed his original plea of not guilty to guilty, the trial court adjudicated him guilty of these offenses. He was given a recommended guidelines sentence of seventeen years in prison with two consecutive three-year mandatory sentences. The trial judge, however, failed to comply with section 775.089, Florida Statutes (1985), which requires that the court award restitution to the victims unless it states reasons not to do so.
After Dailey had been transported to the Department of Corrections, the state filed a motion to modify Dailey’s sentence to include restitution. Dailey filed a notice of appeal to this court on September 11, 1990. Later that same day, the court entered an amended order adding a requirement that Dailey make restitution for injuries to the victims. The order also directed that Dai-ley serve fifteen years’ probation following his imprisonment with the provision that probation was to terminate upon completion of his restitution obligations.
We find merit only to Dailey’s contention concerning the order of restitution and the accompanying probationary aspect of his sentence. Once the notice of appeal had been filed, the trial court was divested of jurisdiction. Wolfson v. State, 437 So. 2d 174 (Fla.2d DCA 1983). Therefore, the-court lacked jurisdiction to enter the amended sentence.
Dailey’s original sentence, however, was incomplete. Therefore, on remand the trial court shall comply with section 775.089(l)(a) which, since 1984, has required that the court order restitution unless reasons exist not to do so. Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988) (sentence not including restitution or reasons for failing to impose it is incomplete and may be modified by the trial court). See also Gilmore v. State, 479 So. 2d 791, 792 (Fla. 2d DCA 1985). Dailey has begun to serve his sentence. Therefore, while the court can impose restitution to make his sentence legally complete, it cannot now add a probationary term to his original sentence. See Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988). To do so would constitute an unauthorized enhancement. Florida Rule of Criminal Procedure 3.800 provides for reduction or modification of sentences, but there is no provision for subsequent enhancement of a legal sentence. See, Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984); Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980).
Affirmed in part and remanded in part for correction of sentence.
HALL and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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State v. MacLEOD, 600 So. 2d 1096 (Fla. 1992)…689, 690 (Fla. 1st DCA) (trial court’s order striking previously imposed restitution requirement “is not an order which may be appealed by the [S]tate pursuant to [the statute and rule]"), review denied, 587 So. 2d 1329 (Fla.1991); Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991) (characterizing sentence not imposing restitution as "incomplete” but not "illegal”); State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990) (trial judge’s order failing to include restitution, without stating its reasons for not…
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Sterling v. State, 682 So. 2d 694 (Fla. 5th DCA 1996)…rs of community service at the end of a prison term constitutes an increase in a defendant’s sentence. Tessier v. Moe, 485 So. 2d 46 (Fla. 4th DCA 1986). The addition of a probationary term also represents an increase in a sentence. Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988). The state argues that Sterling waived his right to object to the increase in sentence, by accepting the condition of prob…
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Kiriazes v. State, 798 So. 2d 789 (Fla. 5th DCA 2001)…ied, 766 So. 2d 220 (Fla.2000); see also State v. MacLeod, 600 So. 2d 1096, 1098 n. 1 (Fla.1992) (approving of cases that characterize a sentence not imposing restitution as an incomplete sentence as opposed to an illegal sentence); Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991). We conclude that the sentence in the instant case was incomplete as opposed to illegal under the definition in Carter. Other analogous cases lend farther support for our conclusion. For example, we find Robinson v. State, 757 So…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)
- Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980)
- McLAIN v. Palm Beach Cnty., 479 So. 2d 791 (Fla. 4th DCA 1985)
- Schomers v. State, 528 So. 2d 1347 (Fla. 2d DCA 1988)
- Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988)
- Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988)