DANNY F. CALIDONIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this sentencing appeal, the trial court improperly modified a probation condition after the 60-day deadline for ruling on rule 3.800(b) motions had passed. Although the underlying probation condition prohibiting all contact with children under 18 was overly broad, the modification order was a nullity due to lack of jurisdiction.
While a condition of probation absolutely prohibiting contact with any child under 18 is impermissibly broad and would warrant modification, the trial court lacked jurisdiction to rule on the 3.800(b) motion after 60 days, making the modification order a nullity. The case is remanded for the trial court to impose a lawful condition prohibiting only unsupervised contact with persons under 18.
[1] A condition of probation prohibiting any contact with a child under 18 years of age is impermissibly broad.
[2] A trial court lacks jurisdiction to rule on a motion to correct sentencing error filed pursuant to rule 3.800(b)(2) more than 60 days after the motion was filed.
Previewing 2 of 4 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“a condition of probation which prohibits any contact with a child under 18 years of age is impermissibly broad”
Establishes the substantive legal principle that absolute contact prohibitions violate constitutional limits on probation conditions.
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Join FLexlaw to unlock all legal intelligenceOn August 4, 2005, following a probation revocation hearing, the trial court sentenced Calidonio to 60 months' imprisonment followed by 9 years of sex…
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PER CURIAM.
In this Anders1 appeal, counsel argues that a sentencing error must be corrected. On August 4, 2005, following a hearing, the trial court revoked the appellant’s probation and sentenced him to 60 months’ imprisonment, to be followed by 9 years of sexual offender probation, for the underlying crime of lewd or lascivious battery.
While this appeal was pending and before the initial brief was filed, the appellant filed a motion to correct sentencing error pursuant to rule 3.800(b)(2), asserting that the condition of probation that he have “no contact with any child under the age of 18,” was an illegal condition of probation.
On February 23, 2006, the trial court granted the order and modified the condition of probation to read “no contact with children under the age of 18 years without the presence of an adult.” The appellant is entitled to the relief he sought in his 3.800(b) motion, as a condition of probation which prohibits any contact with a child under 18 years of age is impermissibly broad. See Graham v. State, 658 So. 2d 642 (Fla. 5th DCA 1995); Schultz v. State, 793 So. 2d 986 (Fla. 2d DCA 2001); Lambert v. State, 635 So. 2d 1056 (Fla. 4th DCA 1994).
However, it is well settled that a trial court has no jurisdiction to rule on a rule 3.800(b) motion after 60 days and an order filed more than 60 days after the motion was filed is a nullity. Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005). In the instant case, the trial court failed to rule on the appellant’s motion within 60 days.
Therefore, the order placing the appellant on sexual offender probation is REVERSED, and the February 23, 2006, order of modification of probation is QUASHED. The appellant’s judgment and sentence is otherwise AFFIRMED. The case is REMANDED for the trial court to impose sex offender probation with a condition that appellant not have any unsupervised contact with a person under 18 years of age. The appellant need not be present when the trial court corrects the sentencing error. See id.
BROWNING, C.J., BENTON, and LEWIS, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Zavon DeShawn Taylor v. State, 185 So. 3d 1281 (Fla. 1st DCA 2016)…Rule of Griminal Procedure 3.800(b)(2), the circuit court did'so after its jurisdiction under that rule expired. Therefore, we must declare the corrected judgment and sentence a nullity and remand.for re-entry of that order. See Calidonio v. State, 951 So. 2d 87, 88 (Fla. 1st DCA 2007) (explaining that an order entered after the expiration of the time for ruling on a motion under Rule 3.800(b)(2) is a nullity); Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005). We also reverse as to an error in the…
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Hall v. State, 105 So. 3d 642 (Fla. 1st DCA 2013)…eemed denied. Moreover, even if the State was correct that the trial court entered an order granting the motion on June 20, 2012, that order was a nullity because it was entered after the 60-day period in rule 3.800(b)(1)(B). See Calidonio v. State, 951 So. 2d 87, 88 (Fla. 1st DCA 2007) (“[A] trial court has no jurisdiction to rule on a rule 3.800(b) motion after 60 days and an order filed more than 60 days after the motion was filed is a nullity.”). Thus, the sentencing error claim framed by Appellant’s rul…
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Brown v. State, 61 So. 3d 1238 (Fla. 1st DCA 2011)…. See Fla. R.Crim. P. 3.800(b)(2)(B). Failure to rule on the motion within 60 days operates as a denial, and any order the trial court enters thereafter is a nullity. See, e.g., Dupree v. State, 20 So. 3d 989 (Fla. 1st DCA 2009); Calidonio v. State, 951 So. 2d 87 (Fla. 1st DCA 2007); Mills v. State, 949 So. 2d 1186 (Fla. 1st DCA 2007). Although the trial court in this case resentenced Appellant, granting the relief sought, it did not do so until November 18, 2010, well outside the 60-day time period prescrib…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Matos v. Budget Rent A CAR Sys., Inc., 658 So. 2d 642 (Fla. 3d DCA 1995)
- Sessions v. State, 907 So. 2d 572 (Fla. 1st DCA 2005)
- Lambert v. State, 635 So. 2d 1056 (Fla. 4th DCA 1994)
- Schultz v. State, 793 So. 2d 986 (Fla. 2d DCA 2001)