ROBERT KNAPP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Knapp appeals his conviction and sentence for a habitual violent felony offense. The court affirms his conviction but vacates his resentenced sentence because the trial court lacked jurisdiction to resentence him while his appeal was pending, and the original sentence was not illegal under the law applicable to his case.
The trial court lacked jurisdiction to resentence Knapp because it lost jurisdiction upon filing of the notice of appeal. The original sentence was not illegal because, although case law at the time required minimum mandatory terms, the Florida Supreme Court's decision in State v. Hudson (decided during the pendency of Knapp's appeal) clarified that trial courts have discretion whether to impose such terms, and Knapp receives the benefit of that decision.
[1] A circuit court loses jurisdiction over a defendant when the defendant files a notice of appeal.
[2] A trial court lacks jurisdiction to resentence a defendant while an appeal is pending.
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Join FLexlaw to unlock all legal intelligence“the circuit court lost jurisdiction over Knapp when he filed his notice of appeal”
Establishes the fundamental principle that a trial court loses sentencing jurisdiction upon filing of a notice of appeal, making the resentencing a jurisdictional violation.
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Join FLexlaw to unlock all legal intelligenceKnapp was originally sentenced on October 27, 1996, as a habitual violent felony offender without minimum mandatory terms. He filed a notice of appeal…
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NORTHCUTT, Judge.
The public defender filed an Anders1 brief in Robert Knapp’s appeal, advising that it presented no meritorious issues warranting reversal, but drawing our attention to the trial court’s admission of Williams2 rule evidence and its imposition of a habitual violent felony offender sentence. Knapp then filed a pro se brief, challenging the court’s refusal to permit him to peremptorily strike an African-American woman from the jury. He also claimed the court erred in resentencing him some seven months after it originally imposed sentence. We agree that the re-sentencing was error. We vacate the amended sentence and remand with directions to reimpose the original sentence. We find no merit in the other contentions raised by the public defender and Knapp, and affirm without further discussion.
The circuit court originally sentenced Knapp on October 27,1996. Knapp filed a notice of appeal in that court on November 22, 1995. Curiously, this notice does not appear in the record on appeal. It was, however, date stamped by the circuit court clerk and sent to this court, which received it on December 18, 1995. On May 10, 1996, the judge resentenced Knapp while his appeal was pending. She had no jurisdiction to do so; the circuit court lost jurisdiction over Knapp when he filed his notice of appeal. See Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983). We presume the court did not know about the appeal because the notice is somehow absent from its records.3
On remand, the judge must reimpose the original sentence. We realize that the court resentenced Knapp because it believed that the original sentence was illegal. It had sentenced him as a habitual violent felony offender but had not imposed minimum mandatory terms. The record contains a letter from the Department of Corrections to the judge advising that she was statutorily required to impose a minimum mandatory term when sentencing a defendant under section 775.084(4)(b), Florida Statutes (1993). Although that was the law in this district in 1995, see Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992), it is no longer. The supreme court, in State v. Hudson, 698 So. 2d 831 (Fla.1997), ruled that trial courts have discretion whether to impose minimum mandatory terms under section 775.084(4)(b). Because Hudson was decided during the pendency of Knapp’s appeal, he receives the benefit of that decision. See Smith v. State, 598 So. 2d 1063 (Fla.1992). Thus, we hold that the original sentence imposed was not illegal. Cf Sims.
Once a defendant begins serving a legal sentence, a court may not increase his sentence because to do so would violate double jeopardy. See Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Harris v. State, 734 So. 2d 1154 (Fla. 2d DCA 1999). Therefore, we vacate Knapp’s amended sentence because the court lacked jurisdiction to impose it, and we remand with directions to reimpose the original sentence without the minimum mandatory terms. The Department of Corrections must correct its records to reflect that Knapp is not sentenced to any minimum mandatory terms in this case.
Affirmed in part, sentence vacated and remanded.
WHATLEY, A.C.J., and DAVIS, J., Concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. Williams v. State, 110 So. 2d 654 (Fla.1959).
. We further note that if an appeal had not been filed, the circuit court would also have been without jurisdiction to resentence Knapp. Under the 1995 version of Florida Rule of Criminal Procedure 3.800(b), the court loses jurisdiction to modify a sentence after 60 days, if an appeal has not been filed.
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Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)…o. 2d -, 2001 WL 98595 (Fla. 2d DCA 2001); Weidner v. State, 767 So. 2d 604 (Fla. 4th DCA 2000). Courts have characterized the 60 day time limit for reducing or modifying a sentence under rule 3.800(c) as jurisdictional. See, e.g., Knapp v. State, 741 So. 2d 1150 (Fla. 2d DCA 1999); Hussey v. State, 739 So. 2d 123 (Fla. 4th DCA 1999); Bowling v. State, 688 So. 2d 947 (Fla. 5th DCA 1997). Accordingly, the 30 day limit under 3.170(0 is also jurisdictional; therefore, the trial court did not have the authority…
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Linnon v. State, 988 So. 2d 70 (Fla. 2d DCA 2008)…trial court granted the State’s motion to correct sentence and resen-tenced Mr. Linnon after he had filed his notice of appeal. A trial court loses jurisdiction to resentence a defendant after the defendant files a notice of appeal. Knapp v. State, 741 So. 2d 1150, 1151 (Fla. 2d DCA 1999). Consequently, the trial court lost jurisdiction over Mr. Linnon when he filed his notice of appeal on March 7, 2007. Thus Mr. Linnon’s amended sentence must be vacated because the trial court lacked jurisdiction to impose i…
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Price v. State, 838 So. 2d 587 (Fla. 3d DCA 2003)…sentence of 134 years to run consecutive to each other and count three. To begin, the trial court lacked jurisdiction to impose or alter Price’s sentence on November 14, 2001, where there were pending appeals from the sentences. See Knapp v. State, 741 So. 2d 1150, 1151 (Fla. 2d DCA 1999) (trial court lacks jurisdiction to re-sentence defendant while appeal is pending). Accordingly, the November 14th sentencing order is stricken in its entirety. Price also argues, and we agree, that the 134-year sentences for…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- State v. Hudson, 698 So. 2d 831 (Fla. 1997)
- Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983)
- Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992)
- Harris v. State, 734 So. 2d 1154 (Fla. 2d DCA 1999)
- Soto v. Nissan Motor Acceptance Corp. & Esserman Nissan, Ltd., 734 So. 2d 1154 (Fla. 3d DCA 1999)