ALEX U. SIRMONS v. STATE OF FLORIDA , 264 So. 3d 958 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALEX U. SIRMONS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-668
[February 6, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 2013CF001093A.
Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Alex U. Sirmons appeals his judgment and sentence of twenty years
for robbery with a deadly weapon and related convictions. He raises four
issues on appeal. With respect to the first three issues, we affirm
without further discussion. However, we agree with Sirmons’s fourth
argument: his sentence should be amended to correct a scrivener’s error
with respect to credit for time served.
The trial court orally granted Sirmons 685 days credit for time served.
However, the sentencing order for Count III reflected only 643 days of
credit for time served. Sirmons moved to correct the error and his
motion was granted on that point.
However, the “corrected” sentence was apparently transposed but in
any event erroneously provided 658 days credit for time served rather
than 685 days. Sirmons filed a second motion to correct the sentence on
June 13, 2018, while his appeal was pending. It does not appear that
the court directly ruled on the motion, but a corrected sentence was
entered on August 14, 2018, sixty-one days after the motion was filed.
Pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B), if a
trial court does not rule on a motion to correct a sentencing error filed
while an appeal is pending within sixty days, the motion shall be deemed
denied. Once the sixty days has passed, an order purporting to
resentence a defendant is entered without jurisdiction and is a nullity.
See, e.g., Maestas v. State, 76 So. 3d 991, 993 n.1 (Fla. 4th DCA 2011);
Campbell v. State, 789 So. 2d 1213, 1214 (Fla. 1st DCA 2001).
Here, once sixty days passed after Sirmons’s motion was filed, it was
deemed denied. Because the trial court entered the amended sentencing
order more than sixty days after the motion was filed, the order was
entered without jurisdiction and is a nullity.
Accordingly, we quash the corrected sentence and we remand for
correction in accordance with the court’s oral pronouncement as to the
amount of credit to be given to Sirmons for previous time served. The
defendant need not be present when the court corrects the error. See
Sessions v. State, 907 So. 2d 572, 573 (Fla. 1st DCA 2005).
Affirmed in part, reversed in part, and remanded with instructions.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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