DAVID O. PAYET vs STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DAVID O. PAYET,
Appellant,
v. Case No. 5D22-547
LT Case Nos. 2018-CF-036781
2018-CF-036581
STATE OF FLORIDA, 2018-CF-029819
Appellee.
________________________________/
Opinion filed August 12, 2022
Appeal from the Circuit Court
for Brevard County,
Tesha Ballou, Judge.
Matthew J. Metz, Public Defender,
and Edward J. Weiss, Assistant
Public Defender, Daytona Beach,
for Appellant.
David O. Payet, Cocoa, pro se.
Ashley Moody, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.
LAMBERT, C.J.
In this Anders 1 appeal, we affirm the judgments and sentences2
imposed by the trial court in the cases below. However, we remand with
directions that the trial court strike from the judgments the Condition 5
violation found3 based on Appellant’s arrest for introduction of contraband
into the county jail. See Hines v. State, 358 So. 2d 183, 185 (Fla. 1978)
(explaining that “[t]he Florida Statutes do not authorize, nor would our
constitution permit, a permanent revocation of probation based solely upon
proof of an arrest during the probationary period”). However, we find it
unnecessary to remand the case for the trial court to reconsider the prison
sentences that it imposed because it is clear from the record that the court
would have revoked Appellant’s community control and imposed the same
sentences based upon Appellant’s other violations of community control.
See Evins v. State, 201 So. 3d 212, 213 (Fla. 5th DCA 2016).
Lastly, we briefly address one of Appellant’s arguments raised in his
pro se supplemental initial brief that the trial court erred in denying his motion
1
Anders v. California, 386 U.S. 738 (1967).
2
The sentences were the lowest permissible sentences on Appellant’s
Criminal Punishment Code Scoresheet and were appropriate under State v.
Gabriel, 314 So. 3d 1243 (Fla. 2021).
3
The trial court listed the conditions of community control that were
violated in the judgments instead of the orders terminating community
control.
2
to withdraw plea. As Appellant’s motions to withdraw his plea were filed after
he filed his notice of appeal of the final judgments and sentences, the trial
court was divested of jurisdiction to consider or rule on the motions. See
Carroll v. State, 266 So. 3d 1270, 1271–72 (Fla. 5th DCA 2019) (quoting
Sharp v. State, 884 So. 2d 510, 512 (Fla. 2d DCA 2004) (holding that “[t]he
filing of the notice of appeal ‘divested the trial court of jurisdiction to enter
any further rulings in the case, including a ruling on [the defendant’s]
subsequently filed motion to withdraw his plea’”)). Thus, the circuit court’s
orders on the motions, as well as the motions to withdraw plea, are nullities
to be stricken. See id. at 1272 (remanding with instructions to the trial court
to strike the defendant’s motion to withdraw plea that was filed subsequently
to the notice of appeal and observing that the defendant’s potential recourse
is to file a motion for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850).
AFFIRMED; REMANDED with directions to strike from the judgments
the Condition 5 violation based on Appellant’s arrest for introducing
contraband into the jail and to strike Appellant’s motions to withdraw plea
filed after his notice of appeal, together with the orders entered on the
3
motions to withdraw plea. 4
EVANDER and HARRIS, JJ., concur.
4
As an aside, we note that one of these orders provided that the trial
court was holding the instant appeal in abeyance. A trial court lacks the
authority to rule upon an appellate court’s jurisdiction. Carroll, 266 So. 3d at
1272.
4