LEWIS D. CRITTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On remand from the Florida Supreme Court's answer to a certified question regarding habitual violent felony offender sentencing requirements, the First District Court of Appeal affirmed Critton's convictions and sentences but vacated the restitution order entered after the trial court lost jurisdiction upon notice of appeal.
The trial court's failure to make the required statutory findings amounts to harmless error when unrebutted evidence of the predicate conviction is in the record and the defendant makes no claim that the conviction was pardoned or set aside. The restitution order must be vacated because it was entered after the court was divested of jurisdiction by the filing of the notice of appeal.
[1] Prosecutorial comments during closing argument that are not objected to and do not fundamentally impair the fairness of the proceeding do not constitute reversible error.
[2] A trial court's failure to make specific findings required by the habitual violent felony offender statute is subject to harmless error analysis.
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Join FLexlaw to unlock all legal intelligence“The trial court erred in failing to make the specific findings required by section 775.084(l)(b)3 and 4, Florida Statutes, but, upon review of the record, we conclude that such failure amounted to harmless error.”
Establishes the court's application of harmless error analysis to the trial court's omission of required statutory findings.
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Join FLexlaw to unlock all legal intelligenceCritton was convicted and sentenced as a habitual violent felony offender. He had a prior armed robbery conviction within five years of the current of…
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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 (Fla.1993). State v. Critton, 613 So. 2d 475 (Fla.1993). Accordingly, we vacate our previous opinion and substitute the following.
The appellant challenges judgments of 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. The trial court erred in failing to make the specific findings required by section 775.084(l)(b)3 and 4, Florida Statutes, but, upon review of the record, we conclude that such failure amounted to harmless error. The restitution order must, however, be vacated, because it was entered after the court was divested of jurisdiction.
The appellee concedes that, in imposing a habitual violent felony offender sentence, the trial court failed explicitly to make the findings required by section 775.-084(l)(b)3 and 4, that the predicate conviction had not been pardoned or set aside. But in State v. Rucker, the supreme court held that the failure to make findings required by the habitual felony offender statute is subject to a harmless error analysis.
Our review of the record reflects that the appellee introduced unrebutted evidence of the appellant’s conviction for armed robbery within five years before his commission of the current offenses, and that the appellant made no claim before the trial court that his armed robbery conviction had been pardoned or set aside. The appellant likewise makes no claim in this court that his armed robbery conviction was pardoned or set aside. Under these circumstances, the trial court’s failure expressly to make the ministerial findings under section 775.084(l)(b)3 and 4 was harmless error. See State v. Rucker, 613 So. 2d at 462. 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 and sentences are affirmed, but the restitution order is vacated.
JOANOS, C.J., and ALLEN and WEBSTER, JJ., concur.
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Maddry v. State, 649 So. 2d 334 (Fla. 1st DCA 1995)…ounsel. The amended order was entered on March 15, 1994, however, after Maddry had filed his notice of appeal. The trial court was, as the State concedes, without jurisdiction to enter the amended order, and it is of no effect. See Critton v. State, 619 So. 2d 495, 497 (Fla. 1st DCA 1993).…
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Powell v. State, 724 So. 2d 1207 (Fla. 2d DCA 1998)…ly with his codefendants, the amount of $10,000 to the Crimes Compensation Trust Fund. The trial court did not have jurisdiction to modify Powell’s sentences in that way. See Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991); Critton v. State, 619 So. 2d 495, 497 (Fla. 1st DCA 1993). The restitution judgment is, therefore, vacated. See Dailey; Critton. Powell also claims he was given improper credit against his current sentences for time served. It is impossible to discern from the face of this record…
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Collins v. State, 729 So. 2d 540 (Fla. 1st DCA 1999)…f jurisdiction to order restitution. As in Brantley v. State, 723 So. 2d 909, 24 Fla. L. Weekly D167, (Fla. 1st DCA 1999), therefore, we reverse the restitution order. See M.C.L. v. State, 682 So. 2d 1209, 1214 (Fla. 1st DCA 1996); Critton v. State, 619 So. 2d 495, 497 (Fla. 1st DCA 1993). ERVIN, BOOTH, and BENTON, JJ., CONCUR.…
Authorities Cited
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Critton v. State, 604 So. 2d 933 (Fla. 1st DCA 1992)
- State v. Critton, 613 So. 2d 475 (Fla. 1993)