Opinion
No. 2D21-2162.
03-17-2023
Brian James JOLLY, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II , Public Defender, and William L. Sharwell , Assistant Public Defender, Bartow, for Appellant. Ashley Moody , Attorney General, Tallahassee, and Donna S. Koch , Senior Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II , Public Defender, and William L. Sharwell , Assistant Public Defender, Bartow, for Appellant.
Ashley Moody , Attorney General, Tallahassee, and Donna S. Koch , Senior Assistant Attorney General, Tampa, for Appellee.
LABRIT, Judge.
Brian Jolly pleaded no contest to trafficking in methamphetamine (count one), possession of a controlled substance (count two), possession of drug paraphernalia (count three), and two counts of carrying a concealed weapon (counts four and five). The trial court sentenced him to three years in prison followed by twenty-four months of probation, and time served for counts three, four, and five. Mr. Jolly reserved the right to appeal two trial court orders denying his motions to suppress and to dismiss. After Mr. Jolly filed his notice of appeal, the trial court entered an amended order which added $52,500 in costs and fees, due to the inclusion of a mandatory fine and surcharge.
We find no error in the denial of the motions to suppress and to dismiss and we affirm without comment the original judgment and sentences. We reverse the amended order due to the trial court's lack of jurisdiction.
Motion to Correct Sentencing Error
The trial court signed the original judgment and sentences on July 7, 2021, and they were recorded on July 14. Mr. Jolly filed his notice of appeal on July 16. On July 27, the trial court entered the amended order. While the appeal was pending, Mr. Jolly filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court lacked jurisdiction to add the monetary penalties because the amended order was filed after his notice of appeal. Additionally, Mr. Jolly argued that the statutory bases for each of the costs and fines were not identified.
The court granted the motion to the extent the statutory bases were not provided but stated that because the fine was mandatory and not discretionary, it was not necessary to orally pronounce it at the sentencing hearing. The court also claimed that the date the written order was rendered is irrelevant. On appeal, Mr. Jolly contends that the court was without jurisdiction to amend the sentence while the case was on appeal, so it makes no difference that the fine at issue was mandatory. We agree.
While a case is on appeal, the trial court lacks jurisdiction to amend the judgment and sentence. See Caruso v. State, 264 So.3d 361, 362 (Fla. 2d DCA 2019). This is true even for minor clerical corrections. See Denman v. State, 328 So.3d 1096, 1097 (Fla. 2d DCA 2021).
We affirm the trial court's original judgment and sentences. On remand, the amended order entered without jurisdiction must be vacated. See id.; Caruso, 264 So. 3d at 361. Once its jurisdiction is restored, the trial court may conduct any necessary procedures to amend the original sentencing document.
Affirmed in part, reversed in part, and remanded with instructions.
KELLY and LaROSE, JJ., Concur.