RICHARD KITCHEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Kitchen appeals the trial court's order denying his motion to correct sentence. The court reverses, finding that the trial court lacked jurisdiction to correct the original downward departure sentence without written reasons under Gartrell v. State.
The trial court lacked jurisdiction to correct the original downward departure sentence. The court reversed the order denying Kitchen's motion to correct sentence, vacated the November 17, 1993 sentence, and reinstated the original sentence with credit for time served.
[1] A trial court lacks jurisdiction to correct a sentence that is improper but not illegal.
[2] A downward departure sentence imposed without written reasons is not an illegal sentence for purposes of a trial court's jurisdiction to correct it.
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Join FLexlaw to unlock all legal intelligence“a downward departure sentence without written reasons is not an illegal sentence within the meaning of Rule 3.800(a), and thus trial courts are without jurisdiction to correct such a sentence”
Establishes the controlling legal standard from Gartrell that the trial court violated
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Join FLexlaw to unlock all legal intelligenceKitchen was sentenced on November 3, 1993, to two consecutive five-year terms and one concurrent three-year term on three third-degree felony counts. …
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PER CURIAM.
Appellant seeks review of an order denying his motion to correct sentence. Because we find that the trial court erred in denying this motion, we reverse.
Appellant was sentenced on November 3, 1993. The guidelines scoresheet called for a recommended sentence of 27 to 40 years, but since the three counts involved were third-degree felonies, the statutory maximum was 15 years. The trial court sentenced the appellant to two consecutive five-year terms, and the third count was to a concurrent three-year term. At the bottom of the sentencing order, the trial court noted that an order would be entered giving the reasons for a departure.
The trial court later determined that a downward departure was unjustified. Accordingly, on its own motion the trial court resentenced the appellant on November 17, 1993, to three consecutive terms. On November 18, 1993, the appellant filed a motion to correct sentence stating that the supreme court has ruled that a trial court does not have jurisdiction to correct a sentence which is only improper but not illegal. The trial court denied appellant’s motion.
In Gartrell v. State, 626 So. 2d 1364 (Fla.1993), the supreme court held that a downward departure sentence without written reasons is not an illegal sentence within the meaning of Rule 3.800(a), and thus trial courts are without jurisdiction to correct such a sentence.1 In the case at bar, the trial court, which did not have the benefit of Gartrell at the time of resentencing, erroneously concluded that the original sentence was an illegal sentence which could be corrected by the trial court. Because the trial court below did not have jurisdiction to correct the downward departure sentence it originally imposed, we must reverse the order denying the motion to correct the sentence imposed on November 17. This case is remanded to the trial court with instructions to vacate the sentence imposed on November 17, 1993, and to reinstate the original sentence. Additionally, the sentence should reflect that the appellant is entitled to credit for all time previously served in the Department of Corrections on these charges. See Harrelson v. State, 620 So. 2d 1131 (Fla. 1st DCA 1993). The amended sentencing order failed to provide for this credit.
BOOTH, WOLF and MICKLE, JJ., concur. . The only appropriate mechanism for the state to challenge an improper sentence is by filing a timely notice of appeal. Gartrell at 1365.
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Citator
Cited By
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Pate v. State, 908 So. 2d 613 (Fla. 2d DCA 2005)…nd thereafter relied on the circuit court’s stay order of November 19, 2004. The State may only challenge a sentence reduction by direct appeal. Gartrell v. State, 626 So. 2d 1364, 1365, 1366 (Fla.1993); Maybin, 884 So. 2d at 1175; Kitchen v. State, 644 So. 2d 150 (Fla. 1st DCA 1994). Florida Rule of Criminal Procedure 3.800 and double jeopardy principles do not allow for a sentence increase. Jones v. State, 760 So. 2d 994 (Fla. 2d DCA 2000); Holmes v. State, 711 So. 2d 565, 567 (Fla. 2d DCA 1997); Rodriguez…
Authorities Cited
- Gartrell v. State, 626 So. 2d 1364 (Fla. 1993)
- Harrelson v. State, 620 So. 2d 1131 (Fla. 1st DCA 1993)