ULYSSES R. KELLY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant was convicted of sexual battery contrary to F.S. 794.011(3), and was sentenced to twenty years imprisonment with credit for 171 days jail time. Notice of appeal of the judgment and sentence was filed. Subsequently, pursuant to the State’s motion to correct an illegal sentence pursuant to Fla.R.Crim.P. 3.800, the sentence of twenty years was set aside as contrary to F.S. 775.082(3)(a), and a sentence of thirty years with credit for 171 days in the county jail awaiting disposition plus credit for all time served to date was imposed.
Since notice of appeal vested exclusive jurisdiction in this court, (State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So. 2d 890 (Fla.1966)) the trial court did not have jurisdiction to correct the initial sentence. Although the sentencing alternatives under sections 948.01 and 959.115 were available (Roberts v. State, 335 So. 2d 285 (Fla.1976); Berezovsky v. State, 350 So. 2d 80 (Fla.1977)), the twenty year sentence was illegal. Therefore, the judgment is affirmed but the cause is remanded for imposition of sentence in accordance with law.
IT IS SO ORDERED.
McCORD, C. J., and MELVIN and BOYER, JJ., concur.
PER CURIAM.
By motion for rehearing appellant urges that we overlooked and failed to consider his contention that certain testimony adduced at the trial constituted an impermissible comment on his constitutional right to remain silent, citing Bennett v. State, 316 So. 2d 41 (Fla.1976) and Shannon v. State, 320 So. 2d 855 (Fla. 1st DCA 1975). We have not overlooked nor failed to consider that point, but our review of the record reveals it to be without merit.
Petition for rehearing is denied.
McCORD, C. J., and BOYER and MELVIN, JJ., concur.
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Cited By (12 total)
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Grant v. State, 770 So. 2d 655 (Fla. 2000)…parture sentence of 364 days in the county jail where the trial court erred in failing to impose a three-year mandatory minimum prison sentence on the qualifying defendant, as required by section 775.087(2), Florida Statutes (1993)); Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978) (setting aside illegal sentence of twenty years imprisonment for sexual battery where thirty years was required by section 775.082(3)(a), Florida Statutes). While imposition of equal concurrent sentences thus did not violate dou…
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Zimmerman v. State, 467 So. 2d 1119 (Fla. 1st DCA 1985)…ay appeal an illegal sentence. Fla.R.App.P. 9.140(c)(l)(I). Section 893.135(l)(a)l, Florida Statutes, imposes a mandatory $25,000 fine in addition to the imprisonment. The failure to impose that fine renders the sentence illegal. Cf Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978) (20 years imposed when 30 years was the statutory minimum sentence), Pruitt v. State, 403 So. 2d 988 (Fla. 2d DCA 1980) ($5,000 fine imposed where $1,000 fine was maximum allowed). Notwithstanding the mandatory language of secti…
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Smith v. State, 407 So. 2d 399 (Fla. 1st DCA 1981)…Fla.R.Crim.P., notice of appeal had already been filed with this Court. Since notice of appeal vested exclusive jurisdiction in the appellate court, the trial court did not have jurisdiction to correct or modify his initial sentence. Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978). Rule 3.800 does, however, give the defendant an opportunity to re-file his motion for reduction of sentence within 60 days after receipt of this Court’s mandate. Although we do not have a sufficient record to evaluate the factua…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Roberts v. State, 335 So. 2d 285 (Fla. 1976)
- State of Fla. ex rel. Earl Faircloth v. The Dist. Court OF Appeal, 187 So. 2d 890 (Fla. 1966)
- Jiri Berezovsky v. State, 350 So. 2d 80 (Fla. 1977)
- Shannon v. State, 320 So. 2d 855 (Fla. 1st DCA 1975)