TERRY L. OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's resentencing order and reinstated the original downward departure sentence because the state failed to timely appeal the original sentence and a verbal motion cannot substitute for a notice of appeal.
A state must timely appeal a downward departure sentence through proper notice of appeal, not through a verbal motion to correct sentence.
[1] A state must seek correction of an improper downward departure sentence through timely notice of appeal; a verbal motion to correct sentence cannot serve as a substitute…
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Join FLexlaw to unlock all legal intelligenceOliver was originally sentenced to two years community control followed by five years probation with special conditions. After the first appeal result…
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PER CURIAM.
Appellant, Terry L. Oliver, appeals the trial court’s sentencing order of April 15, 1997. This is Oliver’s second appeal in this matter. The first appeal resulted in a remand for resentencing. See Oliver v. State, 687 So. 2d 974 (Fla. 4th DCA 1997). Upon remand, Oliver received a guidelines sentence of twelve years. Oliver appeals, contending that he should receive the original downward departure sentence of two years community control followed by five years probation as recommended by the Department of Corrections. The state asserts that Oliver was properly sentenced on remand, and that the original downward departure sentence was improper. The state must seek correction of an improper downward departure sentence through an appeal. See Oliver; see also Gartrell v. State, 626 So. 2d 1364, 1365 (Fla.1993). Since the state did not timely appeal Oliver’s downward departure sentence of August 18, 1995, and since its verbal 3.800(a) motion to correct the sentence cannot serve as a substitute for a notice of appeal, we must reverse under Gartrell. See id.
We therefore reverse and remand for reinstatement of the original sentence of two years community control followed by five years probation, special condition ninety days jail for Counts I and II, and direct that as to Counts III and IV, Oliver shall receive credit time served as originally ordered.
AFFIRMED.
KLEIN, GROSS, JJ., and BAILEY, JENNIFER D., Associate Judge, concur.
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Citator
Cited By
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Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)…nd parties’ intentions at sentencing.” Pate v. State, 908 So. 2d 613, 614 (Fla. 2d DCA 2005). Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed. See also Oliver v. State, 727 So. 2d 271, 272 (Fla. 4th DCA 1999) (holding that a rule 3.800(a) motion cannot serve as a substitute for the state filing a proper appeal of a sentence imposed in error). It is noteworthy that the State, having failed to preserve this issue at the sentencing…
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Linnon v. State, 988 So. 2d 70 (Fla. 2d DCA 2008)…nd parties’ intentions at sentencing.” Pate v. State, 908 So. 2d 613, 614 (Fla. 2d DCA 2005). Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed. See also Oliver v. State, 727 So. 2d 271, 272 (Fla. 4th DCA 1999) (holding that a rule 3.800(a) motion cannot serve as a substitute for the state filing a proper appeal of a sentence imposed in error). 969 So. 2d at 550; see Ashley v. State, 850 So. 2d 1265, 1267 (Fla.2003) (stating that…
Authorities Cited
- Gartrell v. State, 626 So. 2d 1364 (Fla. 1993)
- Oliver v. State, 687 So. 2d 974 (Fla. 4th DCA 1997)