GERRELL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerrell Smith appeals his convictions for aggravated battery and aggravated assault. The appellate court found that the trial court erred by entertaining the State's motion to correct illegal sentences under Florida Rule of Criminal Procedure 3.800(a) while the appeal was pending, as the rule expressly forbids such motions during that period.
The trial court lacked jurisdiction to entertain the State's motion to correct illegal sentences under Rule 3.800(a) because that rule expressly forbids the filing of such a motion during the pendency of an appeal. Absent such authority, the trial court cannot correct the sentence.
[1] A trial court lacks jurisdiction to correct a sentence when a motion to do so is filed during the pendency of an appeal.
[2] Florida Rule of Criminal Procedure 3.800(a) expressly forbids the filing of a motion to correct an illegal sentence during the pendency of an appeal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the State was not permitted to file a motion to correct the illegal sentences under Florida Rule of Criminal Procedure 3.800(a) because the rule expressly forbids the filing of such a motion during the pendency of the appeal”
Establishes the core holding that Rule 3.800(a) prohibits motions during pendency of appeal
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of one count of aggravated battery with a deadly weapon and four counts of aggravated assault with a deadly weapon. He filed a not…
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Gerrell Smith [“Smith”] appeals his judgment and sentence for one count of aggravated battery (deadly weapon) and four counts of aggravated assault (deadly weapon). He raises several issues on appeal. We find merit in only one — that the trial court erred by entertaining and ruling on the State’s rule 3.800(a) motion to correct illegal sentences imposed on Counts II-V during the pendency of appeal.
After sentencing, Smith filed his notice of appeal on November 22, 2010. Thereafter, on April 20, 2011, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Smith filed a motion to correct sentencing error with respect to Count I, the aggravated battery count.
On June 2, 2011, pursuant to Florida Rule of Criminal Procedure 3.800(a), the State filed a motion to correct illegal sentence with respect to each of Counts II-V, the four counts of aggravated assault. Shortly thereafter, on June 7, 2011, after hearing argument from the parties, the trial court found that the sentences for the aggravated battery count, as well as the sentence for each of the four aggravated assault counts, were illegal. The court vacated the sentences and re-sentenced Smith to fifteen years in the Department of Corrections, with a three-year mandatory minimum term on the aggravated battery count, and to twenty years in the Department of Corrections, with a twenty-year mandatory minimum term on each of the four counts of aggravated assault, to run concurrent with each other and with the sentence for the aggravated battery count.
Smith correctly asserts on appeal that the State was not permitted to file a motion to correct the illegal sentences under Florida Rule of Criminal Procedure 3.800(a) because the rule expressly forbids the filing of such a motion during the pendency of the appeal. Absent such authority, the trial court lacks jurisdiction to correct the sentence. Linnon v. State, 988 So.2d 70, 72 (Fla. 2d DCA 2008). Accordingly, we vacate the corrected sentences and remand so that the State may file its motion in compliance with the rule.
SENTENCE VACATED and REMANDED.
TORPY and LAWSON, JJ., concur.
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Citator
Cited By
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Walters v. State, 114 So. 3d 205 (Fla. 5th DCA 2012)…iction to hear the motion. Rule 3.800(a) expressly prohibits the filing of a motion during the pendency of a direct appeal. Therefore, the trial court lacked jurisdiction to rule on the motion because the motion was unauthorized. See Smith v. State, 82 So. 3d 1185, 1186 (Fla. 5th DCA 2012). Accordingly, we vacate the order of the trial court and remand this case with directions to dismiss Walters’ motion for lack of jurisdiction. See Daniels v. State, 712 So. 2d 765 (Fla.1998); St. Lawrence v. State, 773 So.…
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Gerrel Marcus Smith v. State (Fla. 5th DCA 2022)…rt vacated the corrected sentences on the four counts of aggravated assault and remanded the case so the State could file its motion in compliance with Rule 3.800(a), that is, file its motion after Smith’s direct appeal was resolved. Smith v. State, 82 So. 3d 1185, 1186 (Fla. 5th DCA 2012). On remand, and after Smith’s direct appeal was resolved, the State filed an amended Rule 3.800(a) motion seeking the same relief: to correct the three-year mandatory minimum sentence for each of the four counts of aggrava…
Authorities Cited
- Linnon v. State, 988 So. 2d 70 (Fla. 2d DCA 2008)