ERROL D. BROOKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court held that the trial court lacked jurisdiction to resentence the defendant before the issuance of the appellate court's mandate.
The defendant filed a motion to correct an illegal sentence after being resentenced. The trial court resentenced the defendant prior to the appellate …
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SILBERMAN, Judge.
Errol D. Brooks appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.
Brooks’s rule 3.800(a) motion challenges the life sentence he received at resentencing following our decision in Brooks v. State, 768 So. 2d 513 (Fla. 2d DCA 2000). We note, and the State concedes, that the trial court resentenced Brooks prior to the issuance of our mandate in Brooks. As a result, the trial court lacked jurisdiction to resentence Brooks. See Wallen v. State, 909 So. 2d 520, 520-21 (Fla. 5th DCA 2005).
We also note that our instructions in Brooks were not completely accurate. Therefore, on remand, Brooks is entitled to be resentenced in accordance with the sentencing guidelines applicable to his conviction, but the State shall have the right to seek an upward departure sentence. See Fain v. State, 888 So. 2d 762, 763 (Fla. 2d DCA 2004). If the trial court finds an upward departure to be appropriate, it must file contemporaneous written reasons for the departure. Id.
Reversed and remanded with directions.
WHATLEY and STRINGER, JJ„ Concur.
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Thompson v. State, 987 So. 2d 727 (Fla. 4th DCA 2008)…rwise, the sentences were unchanged. Thompson appealed the changed sentence, arguing for a de novo resentencing hearing because the consecutive life sentence for the burglary conviction is still a sentence above the guidelines. See Brooks v. State, 937 So. 2d 827, 828 (Fla. 2d DCA 2006) (finding that sentencing guidelines [*729] apply to resentencing following a successful rule 3.800(a) motion, but the state has the right to seek an upward departure). A defendant need not be present when a court simply dele…
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Mathis v. State, 963 So. 2d 299 (Fla. 1st DCA 2007)…d petitioner’s motion on the merits. However, mandate for the opinion in case 06-1775 had not issued at the time the trial court entered its order. Thus, the trial court did not have jurisdiction to consider the 3.800(c) motion. Cf. Brooks v. State, 937 So. 2d 827 (Fla. 2d DCA 2006) (because mandate had not issued, the trial court lacked jurisdiction to resentence Brooks); State v. Miyasato, 805 So. 2d 818 (Fla. 2d DCA 2001) (mandate functions to end the jurisdiction of the appellate court and to return full…
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Campbell v. Commercial Serv. OF Perry, Inc., 949 So. 2d 259 (Fla. 4th DCA 2007)…court and raised two issues for our consideration. Campbell first claims, and Commercial Services concedes, that the trial court lacked jurisdiction to enter the amended order because this court had not yet issued its mandate. See Brooks v. State, 937 So. 2d 827 (Fla. 2d DCA 2006) (because the mandate had not issued the [*260] trial court lacked jurisdiction to resentence Brooks); State v. Miyasato, 805 So. 2d 818 (Fla. 2d DCA 2001) (mandate functions to end the jurisdiction of the appellate court and to re…
Authorities Cited
- Errol D. Brooks v. State, 768 So. 2d 513 (Fla. 2d DCA 2000)
- Miami-Dade Cnty. v. Weir, 888 So. 2d 762 (Fla. 3d DCA 2004)
- Fain v. State, 888 So. 2d 762 (Fla. 2d DCA 2004)
- Douglas v. State, 909 So. 2d 520 (Fla. 5th DCA 2005)
- Wallen v. State, 909 So. 2d 520 (Fla. 5th DCA 2005)