JAMES LEE WENNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court was divested of jurisdiction to order restitution after the notice of appeal was filed.
Appellant was convicted and sentenced, but no restitution was ordered. Appellant filed a notice of appeal, and subsequently, the trial court held a re…
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CAMPBELL, Acting Chief Judge.
Appellant was convicted of attempted murder in the second degree. On appeal, he challenges only the court’s order of restitution.
Appellant was sentenced within the guidelines, however, the court made no order of restitution in the sentence. Within thirty days of sentencing, appellant filed a notice of appeal. Subsequent to the filing of the notice, the court held a restitution hearing. Appellant was not present. Restitution was ordered.
Appellant argues that it was 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 aside. On remand, the court may modify the sentence under Florida Rule of Criminal Procedure 3.800. The court must follow the proper procedures of notice and a hearing before restitution may be imposed.
FRANK and BLUE, JJ., concur.
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Citator
Cited By
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Abram J. Jordan v. State, 782 So. 2d 443 (Fla. 2d DCA 2001)…ordan’s appeal in this case, the trial court issued an order vacating its earlier order which had dismissed Jordan’s postconviction motion. Because the trial court was divested of jurisdiction when Jordan filed his notice of appeal, Wenner v. State, 610 So. 2d 80, 81 (Fla. 2d DCA 1992), this second order was a nullity. Daniels v. State, 712 So. 2d 765 (Fla.1998). Affirmed. BLUE, A.C.J., and SALCINES and DAVIS, JJ., concur.…
Authorities Cited
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Critton v. State, 604 So. 2d 933 (Fla. 1st DCA 1992)