DARRELL DEMPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in sentencing the defendant for a charge on which a judgment of acquittal was granted and in incorrectly noting a nolo contendere plea in the final judgment.
The defendant was charged with armed carjacking and aggravated fleeing. The trial court granted a judgment of acquittal on the fleeing charge but late…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Darrell Demps was charged with armed carjacking and aggravated fleeing. At the conclusion of the state’s case in Demps’s jury trial, the trial court granted a judgment of acquittal as to the aggravated fleeing. The jury found Demps guilty of carjacking with a deadly weapon, a lesser included offense.
Sentencing occurred about a month after the trial. The trial court sentenced Demps to ten years in prison, followed by five years probation, for the carjacking. However, the trial court also sentenced Demps to five years in prison on the fleeing charge. Both sentences were to be served concurrently. A disposition order indicates that Demps was found guilty of both carjacking with a firearm and aggravated fleeing. The written final judgment states that Demps pled nolo contendere to both armed carjacking and aggravated fleeing.
On March 13, 2003, Demps filed a motion to correct sentencing error, pointing out that the trial court had incorrectly-sentenced him for the fleeing, having granted a judgment of acquittal on that charge. Demps also pointed out that the final judgment incorrectly noted he had pled nolo contendere. Because the trial court did not rule on this motion within sixty days, it is deemed to have been denied. See Fla. R.Crim. P. 3.800(b)(1)(B).
The state concedes error. This case is reversed for the trial court to vacate its sentence on the aggravated fleeing charge and to correct the final judgment.
GUNTHER, POLEN and GROSS, JJ„ concur.
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Boca Burger, Inc. v. Forum, 912 So. 2d 561 (Fla. 2005)…a. 5th DCA 2004); Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004); Williams v. State, 876 So. 2d 27 (Fla. 1st DCA 2004); McGough v. State, 876 So. 2d 26 (Fla. 1st DCA 2004); Turner v. State, 875 So. 2d 731 (Fla. 2d DCA 2004); Demps v. State, 874 So. 2d 737 (Fla. 4th DCA 2004); Johnson v. State, 873 So. 2d 558 (Fla. 1st DCA 2004); Carmona v. State, 873 So. 2d 348 (Fla. 5th DCA), review denied, 888 So. 2d 17 (Fla.2004); Botarf v. State, 867 So. 2d 1280 (Fla. 5th DCA 2004); Henderson v. State, 867 So. 2d…