ARTAVIOUS COTTON

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D19-153 _____________________________

ARTAVIOUS COTTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Steven B. Whittington, Judge.

July 15, 2020

OPINION ON MOTION FOR WRITTEN OPINION, REHEARING, AND

CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

We grant the Motion for Written Opinion, Rehearing, and Certification of Question of Great Public Importance in part by providing the following written opinion.

Appellant pled guilty to first-degree murder and attempted sexual battery and was sentenced to life with the possibility of parole after 25 years on the murder count and five and a half years, concurrent, on the attempted sexual battery count. He was 15 years old at the time of the offenses in 1993.

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In 2017, he filed a Rule 3.850 motion seeking to be resentenced in light of Miller v. Alabama, 567 U.S. 460 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). The State initially conceded that he was entitled to resentencing, but the trial court did not enter a written order granting relief despite granting the motion. Over the next year, Defendant and his attorney followed up with requests and amended applications for resentencing, but they were not acted upon. During this time, the Florida Supreme Court issued its decision in State v. Michel, 257 So. 3d 3 (Fla. 2018), which overruled Atwell, prompting the State to move for a stay of Appellant’s resentencing.

A hearing was held on September 20, 2018, at which the trial court acknowledged that he had verbally granted Appellant’s motion for resentencing but also acknowledged that no written order was entered (“I don’t know why an actual written order was not entered in this case, but clearly I, in a sense, granted the motion.”). The State and Appellant thereafter filed motions and memoranda addressing whether resentencing should occur, the State asserting that a change in the law precluded relief and the Appellant asserting that the trial court’s prior ruling was binding. The trial court ultimately denied the motion for resentencing, prompting this appeal.

We affirm the denial of the motion for resentencing because the trial court never formally entered a written order granting resentencing. This Court recently denied relief in a case in which the defendant asserted that the “trial court’s order appointing counsel for [defendant] was functionally equivalent to a final order granting resentencing,” a claim deemed to be “without merit.” Smith v. State, 45 Fla. L. Weekly D1366 (Fla. 1st DCA June 3, 2020). In rejecting the defendant’s claim, the panel in Smith noted that the order appointing the public defender for purposes of resentencing “did not grant any relief or indicate that any relief would be granted” such that “no final order or a functional equivalent had been rendered” as to the resentencing of the defendant. Id. (Emphasis added).

Based on Smith, the question presented in this case is whether a trial court’s verbal grant of a motion for resentencing, if not reduced to writing, is the “functional equivalent” of a final

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order. We conclude it is not. First, the appellate rules state that “[a]n order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(h). No order has been rendered within the meaning of this rule. Second, the general rule is that an appellate court “lacks jurisdiction to review oral orders of the trial court, where such orders have not been reduced to writing.” State v. Smith, 557 So. 2d 904, 904 (Fla. 1st DCA 1990). We see no reason to except orders granting or denying resentencing from this general rule. Finally, we note that the Appellant did not request that the trial judge enter a nunc pro tunc order despite the trial court saying, “clearly I, in a sense, granted the motion.” The trial court’s subsequent written order denying resentencing is therefore AFFIRMED.

LEWIS, MAKAR, and BILBREY, JJ., concur.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.