LYNDAL KENNETH WILKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this Anders appeal, the Florida First District Court of Appeal reversed and remanded Wilkins' conviction and sentence for attempted armed kidnapping (count II) because the trial court improperly convicted and sentenced him on a count that the State had nolle prossed prior to trial. The court affirmed his convictions on the remaining four counts.
The court held that the trial court improperly adjudicated Wilkins guilty and imposed a sentence for count II because a nolle prosequi effectively ends the proceeding and any action taken subsequent to it is a nullity. The court reversed and remanded Wilkins' judgment and sentence for count II with directions to vacate the conviction and sentence on that count, while affirming his remaining convictions.
[1] A trial court errs when it adjudicates a defendant guilty and imposes a sentence for a count that the State has nolle prossed.
[2] A nolle prosequi effectively ends a criminal proceeding, rendering any subsequent action a nullity.
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Join FLexlaw to unlock all legal intelligence“a 'nolle prosequi effectively ends the proceeding, and any action taken subsequent to the filing of the nolle prosequi is a nullity.'”
Establishes that a nolle prosequi terminates the proceeding and any subsequent conviction is void
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Join FLexlaw to unlock all legal intelligenceWilkins was charged with five crimes: burglary of a dwelling while armed (count I), attempted armed kidnapping with a weapon (count II), aggravated st…
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In this Anders 1 appeal, Lyndal Kenneth Wilkins, Appellant, challenges his judgments and sentences for burglary of a dwelling while armed with a dangerous weapon (count I), attempted armed kidnapping with a weapon (count II), aggravated stalking by credible threat (count III), possession of a short-barreled shotgun (count IV), and possession of burglary tools (count V). After a preliminary review of the record on appeal, we directed appellate counsel and the State to file supplemental briefs to address the issue of whether Appellant was improperly convicted and sentenced for count II after the State nolle prossed this count. The parties complied, and the State conceded error. We agree that error occurred; thus, we reverse and remand Appellants judgment and sentence for count II with directions to the trial court to vacate the *306imposition of sentence for count II, and we direct the Clerk of the Court to amend its records to reflect the announcement of a nolle prosequi of count II by the State. We otherwise affirm Appellant’s remaining judgments and sentences without discussion.
In this case, the State nolle prossed count II in exchange for Appellant accepting a plea. Nevertheless, after Appellant accepted the State’s plea, the trial court adjudicated Appellant guilty of count II and imposed a sentence for this count. The State may file a nolle prosequi at any time prior to the swearing in of the jury. State v. Kahmke, 468 So.2d 284, 285 (Fla. 1st DCA 1985). In addition, since the decision to nolle prosse a cause is within the sole discretion of the State, it may do so without the permission of the trial court. Id. Consequently, “a ‘nolle prosequi effectively ends the proceeding, and any action taken subsequent to the filing of the nolle prosequi is a nullity.’ ” State v. Aguilar, 987 So.2d 1233, 1235 (Fla. 5th DCA 2008) (quoting Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007)).
Here, it is apparent from the record on appeal that error was unintended because the trial court acknowledged that the State nolle prossed count II. However, it is undisputed that the trial court improperly adjudicated Appellant guilty and sentenced him for count II.
We, therefore, reverse and remand Appellants judgment and sentence for count II with directions to the trial court to vacate the imposition of sentence for count II and we direct the Clerk of the Court to amend its records to reflect the announcement of a nolle prosequi of count II by the State. We otherwise affirm Appellant’s remaining judgments and sentences.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions.
WOLF, LEWIS, and WETHERELL, JJ., concur.
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Barnett v. Antonacci, 122 So. 3d 400 (Fla. 4th DCA 2013)…ateral discretion to enter a nolle prosse. See State v. R.J., 763 So. 2d 370, 371 (Fla. 4th DCA 1998) (“It is axiomatic that the decision to file a nolle prosse is vested solely in the discretion of the state.”) (footnote omitted); Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012) (“[T]he decision to nolle prose a cause is within the sole discretion of the State ....”) (citing State v. Kahmke, 468 So. 2d 284, 285 (Fla. 1st DCA 1985)). The discretionary power of a prosecutor “in determining whether a p…
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Quartez M. Davis v. State, 210 So. 3d 101 (Fla. 2d DCA 2016)…ew law violation).”), disapproved on other grounds in Del Valle v. State, 80 So. 3d 999 (Fla. 2011). In the context of a criminal jury trial, the State may announce a .nolle prosse of a charge at any time before the jury is sworn. Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012); State v. Aguilar, 987 So. 2d 1233, 1234-35 (Fla. 5th DCA 2008). The State does not need the trial court’s permission. Wilkins, 90 So. 3d at 306; Aguilar, 987 So. 2d at 1235. A nolle prosse is self-executing upon its announc…
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Sowell v. State, 88 So. 3d 263 (Fla. 2d DCA 2012)…or to trial. Sowell claims, and the State concedes, that the two lewd and lascivious counts were orally nolle prossed at a pretrial hearing and should be vacated. See Bearden v. State, 481 So. 2d 542 (Fla. 2d DCA 1986); see also Wilkins v. State, 90 So. 3d 305, 2012 WL 178379 (Fla. 1st DCA 2012). The record supports this assertion, and there is nothing in the record to suggest that the charges were refiled. Sowell also argues that because the evidence of the two lewd and lascivious charges was presented…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Kahmke, 468 So. 2d 284 (Fla. 1st DCA 1985)
- Fine v. Remax Advantage Plus, 949 So. 2d 303 (Fla. 4th DCA 2007)
- Sadler v. State, 949 So. 2d 303 (Fla. 5th DCA 2007)
- State v. Aguilar, 987 So. 2d 1233 (Fla. 5th DCA 2008)