KENNETH PAUL BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court's resentencing order was a nullity because it was entered 123 days after the Rule 3.800(b)(2) motion was filed, exceeding the mandatory 60-day deadline, requiring reversal and remand for resentencing.
A trial court's failure to rule on a Rule 3.800(b)(2) motion within 60 days operates as a denial, and any resentencing order entered thereafter is void.
[1] A trial court's failure to rule on a Rule 3.800(b)(2) motion within the mandatory 60-day period renders any subsequent resentencing order a nullity.
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Join FLexlaw to unlock all legal intelligenceKenneth Paul Brown was convicted of sale or delivery of cocaine and sentenced as a Habitual Felony Offender. He filed a Rule 3.800(b)(2) motion on Jul…
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Kenneth Paul Brown (“Appellant”) appeals the denial of his motion filed under Florida Rule of Criminal Procedure 3.800(b)(2) to correct asserted sentencing errors. He raises no challenge to his conviction for sale or delivery of cocaine.
On July 16, 2010, Appellant filed a 3.800(b)(2) motion asserting that the trial court erred in imposing a Habitual Felony Offender (“HFO”) sentence because it failed to order a presentence investigation report and because the state failed to prove up the requisite prior felonies. See §§ 775.084(1)(a)2.b., (3), Fla. Stat. (2009). Rule 3.800 requires a trial court to dispose of such a 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 18, 2010, well outside the 60-day time period prescribed by Rule 3.800(b). Because the court effectively denied the motion in error, as the state properly concedes, we reverse Appellant’s HFO sentence and remand for resentencing.
REVERSED and REMANDED.
BENTON, C.J., CLARK, and MARSTILLER, JJ., concur.
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Citator
Cited By
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Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013)…ed more than sixty days from the date Ogden filed the motion. Thus, the order and resulting amended judgments and sentences are legal nullities. Fla. R. Crim. P. 3.800(b)(2); Williams v. State, 72 So. 3d 285, 285 (Fla. 1st DCA 2011); Brown v. State, 61 So. 3d 1238, 1238 (Fla. 1st DCA 2011); Campbell v. State, 789 So. 2d 1213, 1214 (Fla. 1st DCA 2001). Although a mandatory cost need not be orally pronounced, it is error to impose a discretionary cost without orally pronouncing it. Nix v. State, 84 So. 3d 424…
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Albarracin v. State, 112 So. 3d 574 (Fla. 4th DCA 2013)…and GERBER, JJ., concur. . The trial court’s failure to consider a mandatory presentence investigation report before [*575] sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion. Brown v. State, 61 So. 3d 1238, 1238 (Fla. 1st DCA 2011). . Florida Rule of Criminal Procedure 3.710(a) provides: No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the a…
Authorities Cited
- Calidonio v. State, 951 So. 2d 87 (Fla. 1st DCA 2007)
- A.B. v. Dep't of Child. & Families, 949 So. 2d 1186 (Fla. 5th DCA 2007)
- Dupree v. State, 20 So. 3d 989 (Fla. 1st DCA 2009)