LEWIS D. CRITTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lewis Critton appeals his convictions and habitual violent felony offender sentences, as well as a restitution order. The court affirmed the convictions but vacated the sentences and restitution order due to the trial court's failure to make statutory findings required for habitual felony offender sentencing and lack of jurisdiction to enter the restitution order after appeal was filed.
The convictions are affirmed. However, the sentences and restitution order are vacated. Specific findings regarding whether prior offenses were pardoned or set aside, as required by Florida Statutes section 775.084(1)(b)3 and 4, are essential to a habitual violent felony offender sentence. The trial court lacked jurisdiction to enter a restitution order after a notice of appeal was filed.
[1] A court must make specific findings regarding whether prior offenses were pardoned or set aside before sentencing a defendant as a habitual violent felony offender.
[2] A trial court loses jurisdiction to amend a sentence by ordering restitution once a notice of appeal has been filed.
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Join FLexlaw to unlock all legal intelligence“Such findings are required by section 775.084(l)(b)3 and 4, and Anderson v. State, 592 So.2d 1119 (Fla. 1st DCA 1991), petition for review filed, case no. 79,535, establishes that these findings are an essential part of a habitual felony offender sentence.”
Establishes that specific statutory findings regarding pardoned or set-aside prior offenses are essential to proper habitual felony offender sentencing in this district.
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Join FLexlaw to unlock all legal intelligenceCritton was convicted and sentenced as a habitual violent felony offender. The trial court did not make findings regarding whether Critton's prior off…
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PER CURIAM.
The appellant challenges judgments óf conviction and habitual violent felony offender sentences, as well as a restitution order. The appellant has not established any reversible error with regard to the judgments of conviction. Certain prosecutorial comments made during closing argument may have been improper, but the appellant did not object and the comments did not so impair the fairness of the proceeding as to produce any fundamental error. However, the sentences must be vacated due to the court’s failure to make the specific findings required by section 775.-084(l)(b)3 and 4, Florida Statutes. The restitution order must also be vacated, as it was entered after the court was divested of jurisdiction.
In sentencing the appellant as a habitual violent felony offender the court did not make any finding as to whether the appellant’s prior offenses had been pardoned or set aside in a post-conviction proceeding. Such findings are required by section 775.084(l)(b)3 and 4, and Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1991), petition for review filed, case no. 79,535, establishes that these findings are an essential part of a habitual felony offender sentence. See also, Hodges v. State, 596 So. 2d 481 (Fla. 1st DCA 1992). Other districts have taken various views on this issue. E.g., compare Baxter v. State, 599 So. 2d 721 (Fla. 2d DCA 1992), petition for review filed, case no. 79,993, with Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992), petition for review filed, case no. 80,033. But the state properly concedes that in this district the issue is controlled by Anderson.
After the judgments and sentences were entered in this case the appellant filed a notice of appeal, and the court thereafter entered the challenged restitution order. Once the notice of appeal was filed, the court lacked jurisdiction to amend the sentence by ordering restitution. Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991). Although the absence of a restitution order in accordance with section 775.-089(l)(a), Florida Statutes, may make the sentence incomplete and subject to modification under Florida Rule of Criminal Procedure 3.800(b), such modification may not be obtained while the appeal is pending. See Dailey.
The judgments of conviction are affirmed. The sentences, including the restitution order, are vacated. Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and (vi), we acknowledge conflict with Baxter and certify the same question as was certified in Anderson.
WIGGINTON, ALLEN and WEBSTER, JJ., concur.
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Cited By
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Critton v. State, 619 So. 2d 495 (Fla. 1st DCA 1993)…PER CURIAM. On September 21, 1992, we issued an opinion in the appellant’s direct appeal from his convictions and sentences. Critton v. State, 604 So. 2d 933 (Fla. 1st DCA 1992). In that opinion, we certified a question to the supreme court. The supreme court has now answered the certified question, quashed our previous opinion, and remanded for proceedings consistent with State v. Rucker, 613 So. 2d 460…
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Wenner v. State, 610 So. 2d 80 (Fla. 2d DCA 1992)…s error to order restitution because once the notice of appeal was filed, the trial court was divested of jurisdiction to enter the order of restitution. We agree based on Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA1991). See also Critton v. State, 604 So. 2d 933 (Fla. 1st DCA1992). Because the original sentence was incomplete since it did not provide for restitution or provide reasons not to impose restitution as required by section 775.-089(l)(a), Florida Statutes (1989), the order of restitution is set…
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State v. Critton, 613 So. 2d 475 (Fla. 1993)…[*476] SHAW, Justice. We have for review Critton v. State, 604 So. 2d 933 (Fla. 1st DCA 1992), wherein the court certified the same question that was certified in Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1992): Does the holding in Eutsey v. State, 383 So. 2d 219 (Fla.1980), that the state has no burden of proof…
Authorities Cited
- Anderson v. State, 592 So. 2d 1119 (Fla. 1st DCA 1991)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- van Bryant v. State, 602 So. 2d 582 (Fla. 4th DCA 1992)
- Hodges v. State, 596 So. 2d 481 (Fla. 1st DCA 1992)
- Baxter v. State, 599 So. 2d 721 (Fla. 2d DCA 1992)