MARIAN WHITMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court reversed trial court's sentencing order imposing drug offender probation on non-enumerated offenses, holding that uttering forged checks and fraudulent credit card use do not qualify for such probation under Florida law.
Drug offender probation cannot be imposed for uttering forged checks and fraudulent use of a credit card, which are not enumerated offenses under Florida Statute § 948.034(1).
[1] Uttering a forged check and fraudulent use of a credit card are not enumerated offenses qualifying for drug offender probation under Florida Statute § 948.034(1).
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Join FLexlaw to unlock all legal intelligenceMarian Whitmore was convicted of multiple offenses across five cases, including three counts of uttering a forged check and two counts of fraudulent u…
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VILLANTI, Judge.
Marian Whitmore was convicted of multiple offenses in five cases. She appealed. While her appeal was pending, she filed a motion to correct sentencing errors under Florida Rule of Criminal Procedure 3.800(b)(2). Because the trial court’s order granting the motion was not timely, we reverse.
In Whitmore’s rule 3.800(b)(2) motion, she claimed that it was illegal to sentence her to drug offender probation in two cases in which she was charged with three counts of uttering a forged check and two counts of fraudulent use of a credit card. The trial court granted Whit-more’s motion but not within sixty days as the rule requires; the trial court was two days late in granting relief. Accordingly, the court’s order is a nullity, and Whitmore’s motion is deemed denied. O’Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003) (citing Jackson v. State, 793 So. 2d 117, 118 (Fla. 2d DCA 2001)). However, the issue Whitmore raised in her motion is preserved for review. Jackson, 793 So. 2d at 118. Uttering a forged check and fraudulent use of a credit card are not enumerated offenses subject to drug offender probation. See § 948.034(1), Fla. Stat. (2000); Buswell v. State, 855 So. 2d 687, 688 (Fla. 2d DCA 2003). Therefore, as the State correctly concedes, it was error for the trial court to sentence her to drug offender probation in cases 00-1010 and 00-1635. Accordingly, we reverse and remand for the trial court to enter an order striking the drug offender probation conditions in cases 00-1010 and 00-1635.
Reversed and remanded.
NORTHCUTT and LaROSE, JJ„ Concur.
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Pearce v. State, 968 So. 2d 92 (Fla. 2d DCA 2007)…Thus the January 25 order granting Mr. Pearce’s motion, the February 7 order setting the restitution payment schedule at $250 per month, and the April 12 order converting all outstanding restitution amounts to a Ken are nullities. Whitmore v. State, 910 So. 2d 308, 308 (Fla. 2d DCA 2005); Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005). Accordingly, we vacate these orders. Conclusion To summarize, we affirm Mr. Pearce’s judgment and sentence, and we affirm the portion of the restitution order tha…
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Seyed R. Miran v. State, 46 So. 3d 186 (Fla. 2d DCA 2010)…d for ruling on such a motion, the order is deemed a nullity and must be stricken. See, e.g., Mapp v. State, 18 So. 3d 33, 37 (Fla. 2d DCA 2009) (striking out-of-time order purporting to rule on a pending rule 3.800(b)(2) motion); Whitmore v. State, 910 So. 2d 308, 308 (Fla. 2d DCA 2005) (noting that order granting relief on rule 3.800(b)(2) motion was a nullity when it was entered two days after the permissible time period). Since the amended judgment and sentence in this case were entered outside of the tim…
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Jackson v. State, 950 So. 2d 1267 (Fla. 2d DCA 2007)…As Jackson points out, the trial court entered a second order correcting these errors on July 20, 2006, but the order was not rendered within sixty days of the filing of his rule 3.800(b)(2) motion and was therefore a nullity. See Whitmore v. State, 910 So. 2d 308 (Fla. 2d DCA 2005). After sixty days, Jackson’s motion was deemed denied. See Moore v. State, 933 So. 2d 42 (Fla. 2d DCA 2006). Accordingly, we affirm Jackson’s judgment and sentence and remand for the entry of an amended cost order that reflects…
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
- Robbie Jackson v. State, 793 So. 2d 117 (Fla. 2d DCA 2001)
- Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- O'Neill v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)
- Green v. State, 855 So. 2d 687 (Fla. 2d DCA 2003)
- Buswell v. State, 855 So. 2d 687 (Fla. 2d DCA 2003)