AURTHER LANDERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aurther Landers appealed his conviction and sentence for delivery of cocaine. The court affirmed the conviction but reversed the sentencing, finding the trial court lacked jurisdiction to modify the sentence after the notice of appeal was filed and that the original habitual felony offender sentence was improper.
The trial court lacked jurisdiction to enter the order declaring Landers a habitual violent felony offender because the notice of appeal vested jurisdiction in the appellate court before that order was entered. The original habitual felony offender sentence was improper because Landers lacked the sequential prior convictions required by statute.
[1] Once a notice of appeal has been filed, jurisdiction vests in the appellate court, divesting the trial court of jurisdiction to enter further orders.
[2] A trial court lacks jurisdiction to enter an order after a notice of appeal has been filed.
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Join FLexlaw to unlock all legal intelligence“It is well settled that once a notice of appeal has been filed, jurisdiction vests in the appellate court.”
Establishes the fundamental principle that prevented the trial court from modifying the sentence after appeal was filed
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Join FLexlaw to unlock all legal intelligenceLanders was convicted of delivery of cocaine and originally sentenced as a habitual felony offender. After Landers timely filed his notice of appeal o…
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PER CURIAM.
Appellant, Aurther Landers, challenges his conviction and sentence for delivery of cocaine. We affirm his conviction, but reverse his sentence.
The trial court originally sentenced Appellant as a habitual felony offender. On October 18,1995, Appellant timely filed his notice of appeal. The next day the State filed a Motion to Correct Sentence due to noncompliance with the habitual felony offender statute. At the hearing on the motion, the State argued that the predicate for a habitual felony offender sentence did not exist due to the lack of sequential prior convictions, but that a habitual violent offender sentence was permissible. The trial court granted the State’s motion and declared Appellant a violent felony habitual offender. It is well settled that once a notice of appeal has been filed, jurisdiction vests in the appellate court. E.g., Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991); Abt v. State, 560 So. 2d 334, 335 (Fla. 4th DCA 1990). In the instant case, since the notice of appeal was filed before the trial court entered its order declaring Appellant a habitual violent felony offender, the trial court was without jurisdiction to enter such an order. Davis v. State, 606 So. 2d 470, 471 (Fla. 1st DCA 1992). Accordingly, we vacate this order. Regarding the original sentence, Appellant correctly points out that he lacked the sequential prior convictions necessary to be classified as a habitual felony offender. See § 775.084(5), Fla. Stat. (1995). Thus, we reverse the original felony offender sentence imposed by the trial court. Banks v. State, 591 So. 2d 282, 288 (FlaA.pp.1st DCA 1992); Taylor v. State, 558 So. 2d 1092, 1093 (Fla. 5th DCA 1990).
remand, the trial court cannot sentence Appellant as a habitual violent felo-felooffender because such a sentence would constitute a harsher punishment than Appel-Appeloriginal felony habitual offender sen-senand would be prone to discourage ap-apin violation of due process. See Banks, 591 So. 2d at 283; Taylor v. State, 576 So. 2d 968, 969 (Fla. 5th DCA 1991). Accordingly, we remand for the trial court to resentence Appellant under the guidelines. See Banks, 591 So. 2d at 283.
Finally, we conclude that the arguments addressed to reversal of Appellant’s conviction merit neither discussion nor reversal.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
GUNTHER, C.J., and WARNER and KLEIN, JJ., concur.
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Thompson v. State, 802 So. 2d 503 (Fla. 4th DCA 2001)…arranting reversal.1 Supplemental briefing has revealed that when resentenc-ing Thompson, the trial court was divested of jurisdiction due to a pending related direct appeal.2 See Knapp v. State, 741 So. 2d 1150 (Fla. 2d DCA 1999); Landers v. State, 691 So. 2d 550 (Fla. 4th DCA 1997). As we state in Thompson v. State, 802 So. 2d 503 (Fla. 4th DCA 2001), appellant must be present at resentencing. We, therefore, vacate the sentence and remand for resentencing. KLEIN, SHAHOOD and HAZOURI, JJ., concur. . Ander…
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C.R. v. State, 60 So. 3d 478 (Fla. 1st DCA 2011)…. 1st DCA 1998) (holding an amended [*480] order dismissing criminal charges was a nullity because the trial court no longer had jurisdiction after the state filed its notice .of appeal of the initial order dismissing the charges); Landers v. State, 691 So. 2d 550, 551 (Fla. 4th DCA 1997) (concluding that because “the notice of appeal was filed before the trial court entered its order declaring Appellant a habitual violent felony offender, the trial court was without jurisdiction to enter such an order”). We…
Authorities Cited
- Taylor v. State, 558 So. 2d 1092 (Fla. 5th DCA 1990)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Clenney Terrell Davis v. State, 606 So. 2d 470 (Fla. 1st DCA 1992)
- Taylor v. State, 576 So. 2d 968 (Fla. 5th DCA 1991)
- Gary Banks v. State, 591 So. 2d 282 (Fla. 1st DCA 1991)
- ABT v. State, 560 So. 2d 334 (Fla. 4th DCA 1990)