FRANK ANTON BIZZELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Bizzell appealed his probation revocation and sentencing to consecutive thirty-year prison terms for attempted sexual battery. The trial court corrected the sentence to concurrent twenty-year terms after Bizzell filed a pro se motion, but then vacated that correction when appellate counsel filed an identical motion, noting jurisdictional concerns about the pending appeal.
The trial court properly vacated the amended sentence, though for the wrong reason. The filing of a notice of appeal divests the trial court of rule 3.800(a) jurisdiction, but rule 3.800(b) allows motions to correct sentencing errors to be filed after notice of appeal but before the initial brief is filed. However, Bizzell's pro se motion should have been stricken because he had counsel at that time. The appellate counsel's identical motion was properly filed and the trial court correctly granted it, necessitating resentencing.
[1] A trial court retains jurisdiction to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) even after a notice of appeal has been filed, pro…
[2] A trial court should strike a pro se motion to correct a sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b) when the defendant is represented…
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Join FLexlaw to unlock all legal intelligence“The filing of a notice of appeal divests the trial court of rule 3.800(a) jurisdiction. Rydberg v. State, 891 So.2d 572, 573 (Fla. 2d DCA 2004). But, rule 3.800(b), under which Mr. Bizzell proceeded, allows the filing of a motion to correct a sentencing error after a notice of appeal is filed but before the filing of the initial brief.”
Establishes that while rule 3.800(a) jurisdiction is divested upon filing notice of appeal, rule 3.800(b) permits sentencing correction motions within a specific window.
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Join FLexlaw to unlock all legal intelligenceBizzell was sentenced in case 92-1323 to consecutive thirty-year prison terms for three counts of attempted sexual battery, consecutive to a sentence …
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LaROSE, Judge.
Frank Bizzell appeals the trial court’s November 14, 2002, order revoking his probation in case 92-1323 and sentencing him to consecutive thirty-year prison terms for three counts of attempted sexual battery. This sentence was consecutive to a sentence imposed in a related case, 92-1322. After fifing this appeal, but before fifing an initial brief, Mr. Bizzell, pro se, moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). He asserted that the sentence in case 92-1323 could be no longer than the originally imposed concurrent twenty-year terms for each count.
The trial court granted Mr. Bizzell’s pro se motion. It entered an amended sentence of concurrent twenty-year prison terms for each count in case 92-1323, consecutive to the sentence in case 92-1322.
Subsequently, Mr. Bizzell’s appellate counsel filed a substantively identical and timely rule 3.800(b)(2) motion to correct a sentencing error. Although the amended sentence was correct, appellate counsel noted that the trial court lacked jurisdiction to consider Mr. Bizzell’s pro se rule 3.800(b)(2) motion because the appeal was pending. The trial court granted this motion, vacated the amended sentence, and ordered a status hearing for the purpose of resentencing.
The trial court’s order vacating the amended sentence was correct, albeit for the wrong reason. See Robertson v. State, 829 So. 2d 901, 906-07 (Fla.2002) (appellate court may affirm trial court ruling that “reaches the right result, but for the wrong reasons” as long as “there is any basis which would support the judgment in the record”) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla.1999)).
The fifing of a notice of appeal divests the trial court of rule 3.800(a) jurisdiction. Rydberg v. State, 891 So. 2d 572, 573 (Fla. 2d DCA 2004).
But, rule 3.800(b), under which Mr. Bizzell proceeded, allows the fifing of a motion to correct a sentencing error after a notice of appeal is filed but before the filing of the initial brief. Although Mr. Bizzell’s initial pro se motion was timely, the trial court, nevertheless, should have stricken it because Mr. Bizzell had counsel at the time. See Logan v. State, 846 So. 2d 472, 479 (Fla.2003); Coffelt v. State, 905 So. 2d 269, 270 (Fla. 2d DCA 2005); Lee v. State, 779 So. 2d 341, 342 n. 2 (Fla. 2d DCA 2000); Rodriguez v. State, 881 So. 2d 671, 673 (Fla. 5th DCA 2004).
Compare Lopez v. State, 905 So. 2d 1045, 1047 (Fla. 2d DCA 2005) (exception for filing of pro se rule 3.800(b) motion after filing of appellate counsel’s initial brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)).
The rule 3.800(b)(2) motion filed by Mr. Bizzell’s appellate counsel was authorized and timely. The trial court properly granted that motion, vacated the amended sentence, and anticipated resentencing for Mr. Bizzell. Accordingly, we remand to the trial court for entry of a new amended corrected judgment and sentence.
Affirmed and remanded.
WHATLEY and VILLANTI, JJ., Concur.
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Fredrick J. Allen v. State, 145 So. 3d 888 (Fla. 2d DCA 2014)…PER CURIAM. Affirmed. See Tucker v. State, 726 So. 2d 768 (Fla.1999); Leeman v. State, 357 So. 2d 703 (Fla.1978); Williams v. State, 997 So. 2d 486 (Fla. 2d DCA 2008); Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005); Pitts v. State, 832 So. 2d 260 (Fla. 2d DCA 2002); Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997); Desmond v. State, 576 So. 2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So. 2d 52 (Fla. 2d DCA 1985); Foss v. State, 834 So. 2…
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Swiderski v. State, 202 So. 3d 445 (Fla. 2d DCA 2016)…PER CURIAM. Affirmed. See Johnson v. State, 974 So. 2d 363 (Fla.2008); Logan v. State, 846 So. 2d 472 (Fla.2003); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005). KHOUZAM, SLEET, and LUCAS, JJ, Concur.…
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Curls v. State, 216 So. 3d 761 (Fla. 2d DCA 2017)…d 15 (Fla. 2d DCA 2015); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Pratte v. State, 946 So. 2d 1184 (Fla. 2d DCA 2006); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005); Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); Luttrell v. State, 513 So. 2d 1298 (Fla. 2d DCA 1987); Small v. State, 556 So. 2d 780 (Fla. 1st DCA 1990). NORTHCUTT, B…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)
- Logan v. State, 846 So. 2d 472 (Fla. 2003)
- Swett v. State, 829 So. 2d 901 (Fla. 2002)
- Robertson v. State, 829 So. 2d 901 (Fla. 2002)
- Walden v. State, 905 So. 2d 1045 (Fla. 1st DCA 2005)
- Rodriguez v. State, 881 So. 2d 671 (Fla. 5th DCA 2004)
- LEE v. State, 779 So. 2d 341 (Fla. 2d DCA 2000)
- Rydberg v. State, 891 So. 2d 572 (Fla. 2d DCA 2004)
- Harvin v. State, 905 So. 2d 269 (Fla. 2d DCA 2005)