TYRONE DUPREE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court quashed a second amended judgment entered outside the 60-day jurisdictional window under Florida Rule of Criminal Procedure 3.800(b)(2), but affirmed the prior amended judgment and remanded for correction of the scrivener's error once jurisdiction returned to the trial court.
A trial court lacks jurisdiction to enter an amended judgment under Florida Rule of Criminal Procedure 3.800(b)(2) if it does so more than 60 days after the motion is filed, even if the state received an extension to respond.
[1] A trial court is divested of jurisdiction to grant a motion under Florida Rule of Criminal Procedure 3.800(b)(2) if the motion is not granted within 60 days of filing, re…
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Join FLexlaw to unlock all legal intelligenceAppellant filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2) to correct a scrivener's error in his judgment and sentence, which incor…
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Appellant seeks review of an amended judgment and sentence which lists his second-degree misdemeanor for driving while license suspended or revoked as a first-degree misdemeanor. Appellant raised this issue in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court eventually granted the motion but outside of the 60-day time period permitted by rule 3.800(b)(2)(B). The court granted the motion after 117 days had elapsed, even counting the granting of the state’s motion for extension to respond. By operation of rule 3.800(b)(2), the motion was deemed denied after 60 days. Therefore, the trial court was without jurisdiction to enter the second amended judgment and sentence.
Accordingly, we quash the second amended judgment and sentence as entered without jurisdiction. We affirm the amended judgment and sentence but remand to the trial court to correct the scrivener’s error by second amended judgment and sentence once jurisdiction returns to the trial court. The state properly concedes error on the issue of the scrivener’s error. It is not necessary for Appellant to be present in court for the purpose of correcting the error.
VAN NORTWICK and PADOVANO, JJ., and BROWNING, JR., EDWIN B„ Senior Judge, concur.
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Brown v. State, 61 So. 3d 1238 (Fla. 1st DCA 2011)…motion within 60 days from the date the motion is filed. 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…