Acevedo v. State

Full title: NOEL LOPEZ ACEVEDO, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Date published: Sep 27, 2019

Case No. 5D19-996 (Fla. Dist. Ct. App. Sep. 27, 2019)

Opinion

Case No. 5D19-996

09-27-2019

NOEL LOPEZ ACEVEDO, Appellant, v. STATE OF FLORIDA, Appellee.

James S. Purdy, Public Defender, and Scott G. Hubbard, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Hernando County, Donald E. Scaglione, Judge. James S. Purdy, Public Defender, and Scott G. Hubbard, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM.

In this Anders ¹ appeal, we affirm Appellant's convictions and sentences, with one exception. We had ordered Appellant's counsel to file either a supplemental brief or a Florida Rule of Criminal Procedure 3.800(b)(2) motion to address the propriety of the written judgment and sentence imposing certain discretionary court costs and a discretionary fine without those having been orally announced by the trial court at sentencing. Prior to appellate counsel responding to this order, the trial court, sua sponte, entered an order striking those court costs and the fine.

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While we appreciate the trial court's diligence, it nevertheless lacked jurisdiction to enter its order correcting sentencing documents while Appellant's direct appeal was pending. See Whitfield v. State, 178 So. 3d 972, 972 (Fla. 5th DCA 2015).

Accordingly, we affirm Appellant's convictions and sentences, with the exception that we vacate the trial court's sua sponte order striking certain discretionary costs and the fine, as well as any amended judgment and sentence subsequently entered consistently with this order. The trial court is not precluded from reentering this order and a corrected amended judgment and sentence following the issuance of our mandate.

AFFIRMED; ORDER VACATED. WALLIS, LAMBERT, and HARRIS, JJ., concur.

Anders v. California, 386 U.S. 738 (1967).