LEONARD JAMES BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court retains jurisdiction to correct illegal sentences even during the pendency of a direct appeal.
The defendant challenged his habitual offender sentence as illegal, arguing his underlying felony conviction was not subject to enhancement. The trial…
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PER CURIAM.
Leonard James Brown challenges the trial court’s dismissal of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court based its dismissal upon Carter v. State, 680 So. 2d 603 (Fla. 2d DCA 1996), and reasoned that it was deprived of jurisdiction to hear the motion because of a pending appeal in this court of the judgment and sentence. We reverse.
In Johnson v. State, 697 So. 2d 1304 (Fla. 2d DCA 1997), this court determined that Florida Rule of Appellate Procedure 9.600(d) provides concurrent jurisdiction to trial courts during the pendency of direct appeals to correct sentencing errors, and the rule broadened the variety of these errors subject to correction beyond the mere clerical errors discussed in Carter. As Brown’s sentencing occurred after January 1, 1997, the effective date of the rule, he benefits from this interpretation.
Brown complains substantively that his habitual offender sentence is illegal because his conviction for felony petit theft is not subject to enhancement pursuant to section 775.084, Florida Statutes (1997). Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997), supports this contention. The record provided by Brown indicates that the trial court imposed a ten-year habitual offender sentence for a third-degree felony that is not subject to this further enhancement after the petit theft is elevated from a misdemeanor to a felony. If this is the case, Brown’s sentence is impermissible as a matter of law, and is subject to correction in a rule 3.800(a) proceeding. See Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991).
Reversed and remanded for consideration of Brown’s motion on its merits.
WHATLEY, A.C.J., and CASANUEVA and SALCINES, JJ., Concur.
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Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009)…ovides that a trial court retains jurisdiction during the pendency of an appeal in a criminal case to consider only motions filed pursuant to rule 3.800(b)(2) and motions addressed to post-trial release pursuant to rule 9.140(h). Cf. Brown v. State, 744 So. 2d 1209, 1209 (Fla. 2d DCA 1999) (noting that the trial court’s jurisdiction while an appeal is pending is limited to that provided by rule 9.600(d)). [*570] Here, Stang’s sentence was not “amended” pursuant to any motion filed under rule 3.800(b)(2). Clear…
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Brown v. State, 746 So. 2d 545 (Fla. 2d DCA 1999)…ises two issues, the first of which, an evidentiary question, has no merit. We write only to note that the second issue Mr. Brown has raised, concerning his habitual offender sentencing, has been disposed of in an independent appeal, Brown v. State, 744 So. 2d 1209 (Fla. 2d DCA 1999). Accordingly, this matter is affirmed. PARKER, A.C.J., and CASANUEVA and DAVIS, JJ., Concur.…
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Vucinich v. State, 776 So. 2d 995 (Fla. 5th DCA 2001)…nor charge of driving without a license to a third degree felony due to his prior suspensions, was improperly further enhanced when the trial court declared him to be an habitual offender. To support this argument, Vucinich relies on Brown v. State, 744 So. 2d 1209 (Fla. 2nd DCA 1999). In Brown, the Second District reversed an habitual offender sentence imposed upon a petit theft conviction which had been elevated from a misdemeanor to a felony. The basis of that decision was that the petit theft statute in qu…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Ridley v. State, 702 So. 2d 559 (Fla. 2d DCA 1997)
- Johnson v. State, 697 So. 2d 1304 (Fla. 2d DCA 1997)
- Carter v. State, 680 So. 2d 603 (Fla. 2d DCA 1996)