CALEB COLSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1998-05-13
No. 96-03342
ALTENBERND, A.C.J., and BLUE and GREEN, JJ., concur.
711 So. 2d 604 Florida District Court of Appeal, Second District (1998) Positive Treatment
Cited by 13 cases

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Synopsis

Caleb Colson was convicted by jury of criminal mischief and sentenced to 46 months probation. The appellate court affirmed the conviction but reversed the sentence due to improper sentencing guideline severity level classification and reversed the restitution order entered after notice of appeal was filed.


Holding

The court affirmed the conviction but reversed and remanded on three grounds: the trial court lacked jurisdiction to enter the restitution order after notice of appeal was filed; the criminal mischief conviction should have been classified as a level one offense, not level two, under section 921.0013; and the probation order must be corrected to reflect jury verdict rather than guilty plea.


Headnotes

[1] A trial court lacks jurisdiction to enter an order of restitution after a notice of appeal has been filed, even if jurisdiction was previously reserved for restitution.

[2] A criminal mischief conviction under section 806.13(1)(b)3., Florida Statutes, which is not specifically listed in section 921.0012, Florida Statutes, should be ranked as…

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Key Quotes

“A trial court does not have jurisdiction to enter an order of restitution after a notice of appeal has been filed even though the trial court previously reserved jurisdiction for the restitution.”

Establishes the core jurisdictional issue that prevented the trial court from entering the restitution order after appellant's timely notice of appeal.

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Facts & Procedural History

Colson was charged with criminal mischief, shooting at/into a building, and two counts of attempted murder of law enforcement officers. A jury found h…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant," Caleb Colson, challenges the trial court’s judgment and sentence adjudicating him guilty of criminal mischief and sentencing him to forty six months probation. Appellant raises several errors regarding his sentence. We affirm appellant’s conviction but reverse his sentence and remand for resentencing.

Appellant was charged with one count of criminal mischief, one count of shooting at, within, or into a building, and two counts of attempted murder of a law enforcement offi-eer. Appellant was found guilty by a jury of only one count of criminal mischief, pursuant to section • 806.13(l)(b)3., Florida Statutes (1993). The trial court adjudicated appellant guilty of criminal mischief and sentenced him to forty-six months probation and reserved jurisdiction on the issue of restitution. Appellant then filed a timely notice of appeal.. After a restitution hearing approximately two months later, the trial court entered an order of restitution and judgment in the amount of $216,631.72 as a lien.

Appellant first challenges the order of restitution as being-improperly entered after a timely notice of appeal was filed in his case.

We agree that the trial court did not have jurisdiction to enter the order. A trial court does not have jurisdiction to enter an order of restitution after a notice of appeal has been filed even though the trial court previously reserved jurisdiction for the restitution. See Pearson v. State, 686 So. 2d 721 (Fla. 2d DCA 1997). Since appellant filed his notice of appeal with the trial court on July 31, 1996, and the restitution order was not entered until October 21, 1996, the trial court lacked jurisdiction to enter the order. We, therefore, reverse the restitution order and judgment and remand. On remand, the trial court may conduct another hearing and again impose restitution. See Pearson, 686 So. 2d at 722; Nguyen v. State, 666 So. 2d 1249 (Fla. 1st DCA 1995).

Next, appellant contends that his conviction for criminal mischief was improperly scored as a level two offense. According to the information and guideline scoresheet, appellant was charged with and found guilty of criminal mischief pursuant to section 806.13(1)(b)3., Florida Statutes (1993).

However, section 806.13(1)(b)3. is not listed in section 921.0012,. Florida Statutes (Supp.1994), which ranks the severity levels of crimes. See § 921.0012, Fla. Stat. (Supp. 1994). Instead, section 921.0012 erroneously lists section 806.13(1)(a)3., as a level two severity ranking even , though subsection (a)3. does not exist. See § 921.0012, Fla. Stat. (Supp.1994).

Section 921.0012, Florida Statutes (1995), was later amended to correct this typographical error. Since the crime with which appellant was charged, section 806.13(1)(b)3., is not specifi cally listed in 921.0012, the severity level for this crime should have been assigned pursuant to section 921.0013, Florida Statutes (1993). See § 921.0013, Fla. Stat. (1993).

Section 921.0013(1) states that a felony of the third degree must be ranked as a level one offense. See § 921.0013(1), Fla. Stat. (1993). See also Kahn v. State, 700 So. 2d 767 (Fla. 2d DCA 1997); Gibson v. State, 691 So. 2d 544 (Fla. 2d DCA 1997).

Appellant’s seoresheet must be corrected to reflect a level one offense ranking instead of a level two. We, therefore, reverse the sentence imposed and remand to resentence appellant pursuant to a corrected guidelines seoresheet.

Finally, appellant’s order of probation indicates appellant pleaded guilty to the charge of criminal mischief when in fact appellant was found guilty by a jury. We reverse and remand to correct the written order of probation to reflect that appellant was found guilty by a jury verdict. See Wright v. State, 600 So. 2d 548 (Fla. 2d DCA 1992).

Accordingly, we reverse and remand for resentencing.

ALTENBERND, A.C.J., and BLUE and GREEN, JJ., concur.


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Citator

Cited By

  • K.D. v. State, 779 So. 2d 468 (Fla. 2d DCA 2000)
    …ber 23, 1999. This was error. A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed. See Edwards v. State, 734 So. 2d 1130 (Fla. 2d DCA 1999); Colson v. State, 711 So. 2d 604 (Fla. 2d DCA 1998). Therefore, we strike the order of restitution. However, because the trial court reserved jurisdiction to hold a restitution hearing, restitution may be reimposed on remand. See Marinetti v. State, 706 So. 2d 1374 (Fla. 2d DCA 199…
  • Marro v. State, 803 So. 2d 906 (Fla. 4th DCA 2002)
    …g, the second district held: A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed. See Edwards v. State, 734 So. 2d 1130 (Fla. 2d DCA 1999); Colson v. State, 711 So. 2d 604 (Fla. 2d DCA 1998). Therefore, we strike the order of restitution. However, because the trial court reserved jurisdiction to hold a restitution hearing, restitution may be reimposed on remand. See Marinelli v. State, 706 So. 2d 1374 (Fla. 2d DCA 199…
  • L'Heureux v. State, 968 So. 2d 628 (Fla. 2d DCA 2007)
    …5th DCA 1993). Although a trial court may impose restitution within sixty days of sentencing, a trial court lacks jurisdiction to do so while a direct appeal is pending. See Jenkins v. State, 954 So. 2d 738, 738 (Fla. 2d DCA 2007); Colson v. State, 711 So. 2d 604, 605 (Fla. 2d DCA 1998); Pearson v. State, 686 So. 2d 721, 721 (Fla. 2d DCA 1997). In other words, a trial court’s jurisdiction to impose a restitution order is temporarily suspended once a notice of appeal is filed. See Butler v. State, 951 So. 2d…

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