DAVID O. PAYET

v.

STATE OF FLORIDA

Fla. 5th DCA | 2022-08-12

No. 22-0547

357 So. 3d 172 Florida District Court of Appeal, Fifth District (2022) Positive Treatment

Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

Probation revocation cannot rest solely on an arrest without a conviction, and motions to withdraw a plea filed after the notice of appeal must be stricken because the trial court loses jurisdiction upon appeal.

Headnotes

[1] A permanent revocation of probation cannot be based solely upon proof of an arrest during the probationary period.

[2] A trial court is divested of jurisdiction to consider or rule on a motion to withdraw a plea once a notice of appeal of the final judgments and sentences has been filed.

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Key Quotes

“The Florida Statutes do not authorize, nor would our constitution permit, a permanent revocation of probation based solely upon proof of an arrest during the probationary period”
From Hines v. State, cited by the court to support striking the arrest-based violation

Facts & Procedural History

Payet was convicted and sentenced to community control terms. The trial court revoked community control based on multiple violations, including an arr…

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Topics

Criminal Punishment Code Scoresheet Anders Appeal Motion For Postconviction Relief

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Opinion of the Court

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DAVID O. PAYET,

Appellant,

v. Case No. 5D22-547 LT Case Nos. 2018-CF-036781 2018-CF-036581 2018-CF-029819 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 12, 2022 Appeal from the Circuit Court for Brevard County, Tesha Ballou, Judge. Matthew J. Metz, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant. David O. Payet, Cocoa, pro se.

Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. LAMBERT, C.J.

In this Anders¹ appeal, we affirm the judgments and sentences² imposed by the trial court in the cases below. However, we remand with directions that the trial court strike from the judgments the Condition 5 violation found³ based on Appellant’s arrest for introduction of contraband into the county jail. See Hines v. State, 358 So. 2d 183, 185 (Fla. 1978) (explaining that “[t]he Florida Statutes do not authorize, nor would our constitution permit, a permanent revocation of probation based solely upon proof of an arrest during the probationary period”). However, we find it unnecessary to remand the case for the trial court to reconsider the prison sentences that it imposed because it is clear from the record that the court would have revoked Appellant’s community control and imposed the same sentences based upon Appellant’s other violations of community control. See Evins v. State, 201 So. 3d 212, 213 (Fla. 5th DCA 2016). Lastly, we briefly address one of Appellant’s arguments raised in his pro se supplemental initial brief that the trial court erred in denying his motion

Footnotes

1 Anders v. California, 386 U.S. 738 (1967).

2 The sentences were the lowest permissible sentences on Appellant’s Criminal Punishment Code Scoresheet and were appropriate under State v. Gabriel, 314 So. 3d 1243 (Fla. 2021).

3 The trial court listed the conditions of community control that were violated in the judgments instead of the orders terminating community control. to withdraw plea. As Appellant’s motions to withdraw his plea were filed after he filed his notice of appeal of the final judgments and sentences, the trial court was divested of jurisdiction to consider or rule on the motions. See Carroll v. State, 266 So. 3d 1270, 1271–72 (Fla. 5th DCA 2019) (quoting Sharp v. State, 884 So. 2d 510, 512 (Fla. 2d DCA 2004) (holding that “[t]he filing of the notice of appeal ‘divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on [the defendant’s] subsequently filed motion to withdraw his plea’”)). Thus, the circuit court’s orders on the motions, as well as the motions to withdraw plea, are nullities to be stricken. See id. at 1272 (remanding with instructions to the trial court to strike the defendant’s motion to withdraw plea that was filed subsequently to the notice of appeal and observing that the defendant’s potential recourse is to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850). AFFIRMED; REMANDED with directions to strike from the judgments the Condition 5 violation based on Appellant’s arrest for introducing contraband into the jail and to strike Appellant’s motions to withdraw plea filed after his notice of appeal, together with the orders entered on the motions to withdraw plea.4 EVANDER and HARRIS, JJ., concur.

4 As an aside, we note that one of these orders provided that the trial court was holding the instant appeal in abeyance. A trial court lacks the authority to rule upon an appellate court’s jurisdiction. Carroll, 266 So. 3d at 1272.

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Citator

Cited By

Syverson v. State (Fla. 5th DCA 2023)

…ed of jurisdiction [to consider the motion to withdraw plea].” Carroll v. State, 266 So. 3d 1270, 1272 (Fla. 5th DCA 2019). Both the motion to withdraw plea and the order denying the motion are nullities and should be stricken. See Payet v. State, 357 So. 3d 172, 173 (Fla. 5th DCA 2022). We decline to consider Syverson’s arguments directed to the denial of his motion to withdraw plea. Accordingly, we affirm the judgment and sentences, dismiss the appeal as to the order denying motion to withdraw plea, and…
Syverson v. State (Fla. 5th DCA 2023)

…ed of jurisdiction [to consider the motion to withdraw plea].” Carroll v. State, 266 So. 3d 1270, 1272 (Fla. 5th DCA 2019). Both the motion to withdraw plea and the order denying the motion are nullities and should be stricken. See Payet v. State, 357 So. 3d 172, 173 (Fla. 5th DCA 2022). We decline to consider Syverson’s arguments directed to the denial of his motion to withdraw plea. Accordingly, we affirm the judgment and sentences, dismiss the appeal as to the order denying motion to withdraw plea, an…

Authorities Cited

Anders v. California, 386 U.S. 738 (U.S. 1967)
Hines v. State, 358 So. 2d 183 (Fla. 1978)
Sharp v. State, 884 So. 2d 510 (Fla. 2d DCA 2004)
Carroll v. State, 44 Fla. L. Weekly D246 (Fla. 5th DCA 2019)
Evins v. State, 201 So. 3d 212 (Fla. 5th DCA 2016)

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