DERRICK LAMONT JORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Jordon appealed his conviction and sentence for passing a stolen lottery ticket and petit theft. While his appeal was pending, the trial court attempted to correct his sentence based on an excessive credit for time served. The appellate court reversed the corrected sentence, holding that the trial court lacked jurisdiction to modify the sentence while the original judgment and sentence were pending appeal.
The trial court lacked jurisdiction to correct appellant's sentence while the appeal of the original judgment and sentence was pending before the appellate court. The corrected sentence entered April 7, 1993, is reversed and the case is remanded for resentencing.
[1] A trial court lacks jurisdiction to correct a defendant's sentence while the original judgment and sentence is pending appeal.
[2] An appeal of a judgment and sentence divests the trial court of jurisdiction over the subject matter of the appeal.
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Join FLexlaw to unlock all legal intelligence“The appeal of appellant's original judgment and sentence removed jurisdiction from the trial court and eliminated the trial court's authority to correct appellant's sentence while the appeal was pending.”
States the core holding that pending appeals divest trial courts of jurisdiction to modify sentences
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Join FLexlaw to unlock all legal intelligenceOn September 16, 1991, Jordon pleaded nolo contendere to passing a stolen lottery ticket and petit theft, and was sentenced to 18 months in prison plu…
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DAVIS, Judge.
Appellant appeals a corrected sentence entered April 7, 1993, nunc pro tunc February 19, 1993. Because appellant’s original judgment and sentence was pending appeal in this court at the time appellant was resen-tenced, the trial court lacked jurisdiction to correct appellant’s sentence. The sentence entered April 7, 1993, nunc pro tunc February 19, 1993 is therefore reversed and the cause remanded for resentencing. On September 16,1991, upon a plea of nolo contendere, appellant was adjudicated guilty of passing a stolen lottery ticket and petit theft. Appellant was sentenced to 18 months in state prison, followed by two years probation. Appellant violated his probation in 1992.
On March 10, 1992, appellant was adjudicated guilty on the charge of violation of probation and was sentenced to state prison for 36 months with credit for two years time served. Appellant filed a notice of appeal in this court on March 20, 1992. The prosecutor later requested the court to correct appellant’s sentence after the Department of Corrections determined that the two-year credit for time served was excessive. At a hearing held on April 6, 1993, the court determined that appellant was entitled to credit for 22 days served plus whatever credit appellant was entitled to as determined by the Department of Corrections. A new judgment and corrected sentence was entered on April 7, 1993.
On May 6, 1993, this court issued a per curiam affirmed opinion in the appeal of the appellant’s original judgment and sentence and the mandate issued on May 21, 1993.
The appeal of appellant’s original judgment and sentence removed jurisdiction from the trial court and eliminated the trial court’s authority to correct appellant’s sentence while the appeal was pending. See Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983).
Appellee relies on State v. Burton, 314 So. 2d 136 (Fla.1975); Goene v. State, 577 So. 2d 1306 (Fla.1991) and United States v. Bishop, 774 F. 2d 771 (7th Cir.1985) to support its argument that this restriction does not apply to orders, judgments or decrees which are the product of fraud, collusion, deceit or mistake. We find that appellee’s reliance on Burton, Goene and Bishop is misplaced since the circumstances in those cases did not involve the correction of a sentence while the same judgment and sentence was pending appeal.
We note that the factual situation here is distinguishable from Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994).
In Kimmel, appellee moved to dismiss an appeal from an order which denied appellant’s petition for writ of error coram nobis on the ground that pending appeals divested the trial court of jurisdiction to consider the petition. This court denied the motion to dismiss the appeal in that case because the issues presented in appellant’s petition were unrelated to those previously denied and then on appeal. As noted in Kimmel, the general rule is that an appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal. Unlike Kim-mel, the jurisdiction of this court in the present case was exclusive as to the subject matter of the appeal.
The corrected sentence entered April 7, 1993, nunc pro tune February 19, 1993 is reversed and the cause is remanded for re-sentencing.
BOOTH and LAWRENCE, JJ., concur.
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Citator
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State v. Freddy Morales, 678 So. 2d 510 (Fla. 3d DCA 1996)…jurisdiction because the state did not file its motion until after the notice of appeal had already been filed. See Loeb v. State, 387 So. 2d 433, 435 (Fla. 3d DCA 1980); Gorman v. State, 636 So. 2d 203 (Fla. 1st DCA 1994); see also Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. [*511] State, 575 So. 2d 287 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Casseus v. Stat…
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Washington Trotter v. State, 746 So. 2d 1208 (Fla. 1st DCA 1999)…t claims that his scoresheet was incorrectly calculated. The trial court dismissed the motion for lack of jurisdiction, stating that appellant’s earlier 3.800 motion, raising substantially the same claims, was pending on appeal. See Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994). However, the appeal upon which the trial court based its dismissal had already been dismissed by this court. The trial court did have jurisdiction to consider the' motion at the time appellant filed the present motion. According…
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Carraway v. Carraway, 883 So. 2d 834 (Fla. 1st DCA 2004)…3d DCA 1983). If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, then the trial court can act. See Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981); see also Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994). Section 733.901(2), Florida Statutes (2003), specifically bars a subsequent action against a personal representative upon the discharge of the personal representative. Although section 733.903 and Florida Probate Rule 5.460(a)…
Authorities Cited
- Goene v. State, 577 So. 2d 1306 (Fla. 1991)
- State v. Ollis Burton, 314 So. 2d 136 (Fla. 1975)
- Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Kimmel v. State, 629 So. 2d 1110 (Fla. 1st DCA 1994)
- Ulysses R. Kelly, Jr. v. State, 359 So. 2d 493 (Fla. 1st DCA 1978)
- United States v. Bishop, 774 F.2d 771 (7th Cir. 1985)
- Cordon v. Alamo Rent-A-Car, Inc., 559 So. 2d 1265 (Fla. 3d DCA 1990)
- Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992)
- Dewayne KEY v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992)