LOUIS SAN MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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San Martin appealed his guidelines departure sentence following remand for resentencing. The trial court departed from sentencing guidelines based on a valid reason, but the written order explaining the departure was lost. The appellate court affirmed, holding that the trial court had jurisdiction to enter a nunc pro tunc order replacing the lost order because the order was contemporaneously prepared at sentencing, distinguishing the case from situations where departure orders are created after sentencing.
The trial court had jurisdiction to enter the nunc pro tunc order because the original order was contemporaneously prepared and filed at sentencing, even though it was subsequently lost. A nunc pro tunc order that merely replaces a lost order is a procedural matter relating to the cause and falls within the trial court's concurrent jurisdiction under Florida Rule of Appellate Procedure 9.600.
[1] A trial court retains jurisdiction to enter a nunc pro tunc order to replace a lost order, even after a notice of appeal has been filed.
[2] A nunc pro tunc order that merely replaces a lost order is considered a procedural matter relating to the cause on appeal.
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Join FLexlaw to unlock all legal intelligence“the trial court had concurrent jurisdiction to prepare a replacement order. A nunc pro tunc order, which merely replaces a lost order, is a 'procedural matter relating to the cause' on appeal.”
Establishes the legal basis for allowing the trial court to enter the replacement order after appeal was pending
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Join FLexlaw to unlock all legal intelligenceThe trial court resentenced the appellant on September 5, 1990, and departed from sentencing guidelines for a valid reason discussed in a prior appell…
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[*302] PER CURIAM.
Appellant challenges his guidelines departure sentence entered after this court remanded the case for resentencing. San-Martin v. State, 562 So. 2d 776 (Fla. 2d DCA 1990). On September 5, 1990, the trial court resentenced the appellant and again departed for the one valid reason discussed in our prior opinion. Although a copy of the order stating the valid reason for departure was not in the record when this appeal was filed, we affirm this departure sentence.
The amended sentence reflects that the court departed from the guidelines and filed an order in connection with that decision. The case progress notes confirm that the order was filed on September 6, 1990. The transcript of the resentencing, of course, contains a discussion of the decision to depart. Nevertheless, the order specifying the valid reason was not in the record on appeal when the parties began this appeal.
Without an order remanding jurisdiction from this court, the trial court entered a nunc pro tunc order explaining the ground for departure on June 7, 1991. The order recites that the trial court had prepared the earlier order and that it must have been lost or misplaced by the clerk of the court.
The appellant argues that the trial court had no jurisdiction to enter the new order and that a departure sentence is now forbidden under the requirements of contemporaneity described in Ree v. State, 565 So. 2d 1329 (Fla.1990). We disagree.
We find this set of facts to be distinguishable from those in Vara v. State, 575 So. 2d 306 (Fla. 2d DCA 1991). In Vara, the court failed to prepare an order of departure until after the defendant was sentenced and the notice of appeal had been filed. In this case, the court contemporaneously prepared and filed the order with the clerk, but the order was lost. Under Florida Rule of Appellate Procedure 9.600, we conclude that the trial court had concurrent jurisdiction to prepare a replacement order. A nunc pro tunc order, which merely replaces a lost order, is a “procedural matter relating to the cause” on appeal.
Affirmed.
SCHOONOVER, C.J., and SCHEB and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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State v. Evans, 692 So. 2d 157 (Fla. 1997)…PER CURIAM. We granted review of Evans v. State, 21 Fla. L. Weekly D1444, — So. 2d - [1996 WL 332340] (Fla. 1st DCA June 18, 1996), based on express and direct conflict with San Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991). However, after closer examination of the two cases, we have determined that there is no express and direct conflict.1 Jurisdiction was therefore improvidently granted and the petition for review is accordingly dismissed. It is…
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Pease v. State, 712 So. 2d 374 (Fla. 1997)…established that there were valid reasons for sentencing the defendant below the guidelines explicated, at the time of sentencing, that sentence should not be affected by the unilateral mistake of “an officer of the state.” In San Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991), review denied, 598 So. 2d 78 (Fla.1992), the appellate court held that the trial court had concurrent jurisdiction during the appeal to enter a nunc pro tunc order containing reasons for departure replacing an earlier order lost…
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Carridine v. State, 721 So. 2d 818 (Fla. 4th DCA 1998)…ground that the courts have consistently strictly construed the requirement that written reasons supporting departure be timely filed. Id. at 368. The First District, in Evans, noted that its decision appeared to conflict with San Martin v. State, 591 So. 2d 301 (Fla. 2d DCA 1991). In San Martin, the trial court departed from the guidelines and filed an order which contained written reasons for the departure. Although the court properly entered written reasons and properly filed these reasons, the order was…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Genero Muniz Vara v. State, 575 So. 2d 306 (Fla. 2d DCA 1991)
- San-Martin v. State, 562 So. 2d 776 (Fla. 2d DCA 1990)