THOMAS E. CIONI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Cioni appealed his sentencing, claiming the trial court imposed excessive attorney's fees and erroneously sentenced him on a charge that had been nolle prossed. The Fifth District Court of Appeal affirmed the sentence but remanded to correct a scrivener's error in the judgment.
The court affirmed the sentence, finding that Cioni failed to preserve the attorney's fees issue for appeal by not requesting a hearing within 30 days of sentencing as required by Florida Rule of Criminal Procedure 3.720. The court acknowledged that the state conceded a scrivener's error existed and remanded the case for correction of that error.
[1] A defendant must request a hearing on attorney's fees within 30 days of sentencing to preserve the issue for appeal.
[2] A scrivener's error in a sentencing order may be corrected on remand without the defendant's presence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To preserve the issue for appeal, Cioni was required to request a hearing before the trial court within 30 days of his sentencing. See Fla. R.Crim. P. 3.720(d)(1), (2). Here, Cioni waited more than five months after filing his notice of appeal before objecting to the attorneys' fees.”
Establishes that Cioni failed to preserve the attorney's fees issue for appellate review because he did not timely request a hearing.
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Join FLexlaw to unlock all legal intelligenceCioni was initially charged with burglary of a dwelling, grand theft, and resisting arrest without violence. He negotiated a plea agreement through hi…
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THOMPSON, J.
Thomas Cioni raises two issues on appeal. First, he argues that the trial court erred by requiring him to pay excessive attorney’s fees. Second, he argues that the trial court erred when it sentenced him on a charge which had been nolle prossed by the state. We affirm, but remand for correction of a scrivener’s error. Initially, the state charged Cioni with burglary of a dwelling,1 grand theft2 and resisting arrest without violence.3 Cioni’s attorney, an assistant public defender, negotiated an agreement with the state. In return for a plea of nolo contendere to the first two charges, the state would file a nolle prosequi to the remaining charge. Cioni accepted the agreement and entered the plea. On the date of sentencing, Cioni argued that he had a conflict with his attorney and attempted to withdraw his plea. The trial court appointed another attorney to represent Cioni. After the newly appointed attorney conferred with Cioni, the trial court heard and then denied the motion to withdraw the plea, and continued with the sentencing. The guideline sentencing range was 34.5 months to 15 years. Cioni was sentenced to seven years on each of the two charges with the sentences to run concurrently. The trial court also required Cioni to pay each lawyer $690.00.
After reviewing the record we conclude that Cioni did not preserve the attorney’s fee issue. To preserve the issue for appeal, Cioni was required to request a hearing before the trial court within 30 days of his sentencing. See Fla. R.Crim. P. 3.720(d)(1), (2). Here, Cioni waited more than five months after filing his notice of appeal before objecting to the attorneys’ fees. The issue cannot now be considered on appeal. Hill v. State, 734 So. 2d 443 (Fla. 2d DCA 1999).
As to the second issue, the state concedes there is a scrivener’s error. We remand for the purpose of correcting the error. Cioni need not be present. Mosco v. State, 640 So. 2d 1219 (Fla. 5th DCA 1994).
AFFIRM sentence; REMAND to correct scrivener’s error. COBB and ORFINGER, R.B., JJ„ concur. . § 810.02(3), Fla. Stat. (1991).
. § 812.014(2)(d), Fla. Stat. (1999).
.§ 843.02, Fla. Stat. (1991).
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Gaynor v. State, 831 So. 2d 1246 (Fla. 5th DCA 2002)…strative remedies, and then by petition for writ of mandamus in the circuit court. Accordingly, the defendant must seek relief on his gain time claim by pursuing his administrative remedies within the Department of Corrections. See Tarrand v. State, 809 So. 2d 66 (Fla. 5th DCA 2002) (holding that rule 3.800(a) is not proper remedy where defendant raises issue which should be pursued through administrative remedies); Bryant v. State, 744 So. 2d 550 (Fla. 1st DCA 1999) (affirming the denial of a rule 3.800(a)…
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Smith v. State, 902 So. 2d 351 (Fla. 5th DCA 2005)…resheet, or a sentence that does not grant proper credit for time served prior to sentencing, it is not available to address post-sentencing jail credit or gain time issues. See Gaynor v. State, 831 So. 2d 1246 (Fla. 5th DCA 2002); Tarrand v. State, 809 So. 2d 66 (Fla. 5th DCA 2002). See also Brown v. State, 427 So. 2d 821 (Fla. 2d DCA 1983). Second, the motion filed in the trial court and the documents filed in this appeal are legally insufficient. There is no explanation, for example, of why Mr. Smith sp…
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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
- Mosco v. State, 640 So. 2d 1219 (Fla. 5th DCA 1994)
- Zitzman v. State, 640 So. 2d 1219 (Fla. 5th DCA 1994)
- Hill v. State, 734 So. 2d 443 (Fla. 2d DCA 1999)