Opinion
No. 2D19-368
06-02-2021
Chadd Allen SPICER, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
The State originally charged Chadd Allen Spicer, under both his own name and an alias, with various drug offenses in case number 2018 CF 010212. To protect the actual, innocent person whose name Spicer had falsely assumed, the State recharged him, solely under his own name, in case number 2018 CF 010224. Then, intending to enter a nolle prosequi in case number 2018 CF 010212, the State inadvertently entered a nolle prosequi in case number 2018 CF 010224. Subsequently realizing its error, the State moved to vacate the nolle prosequi in case number 2018 CF 010224 and to enter judgment and sentence in that case and asked the trial court to permit the State to enter a nolle prosequi in case number 2018 CF 010212.
Spicer argues, and the State correctly concedes, that the trial court lacked jurisdiction to reopen circuit court case number 2018 CF 010224 and enter the judgment and sentence after the State had entered a nolle prosequi in that case. See State v. Vazquez , 450 So. 2d 203, 204 (Fla. 1984) (agreeing that the entry of a nolle prosequi "amounts to a dismissal or nullification of the particular indictment or information and renders nugatory any proceedings carried on subsequently under the same indictment or information" (quoting 1958 Op. Att'y Gen. Fla. 058-169 (May 23, 1958))); Sadler v. State , 949 So. 2d 303, 305 (Fla. 5th DCA 2007) (explaining that the trial court's jurisdiction to try an accused defendant does not exist unless there is an extant charging document and concluding that the trial court lacked jurisdiction to prosecute the defendant after the State had entered a nolle prosequi). Because the nolle prosequi effectively ended the proceeding, any action taken subsequent to its entry was a nullity. See Sadler , 949 So. 2d at 305 (citing State v. Braden , 375 So. 2d 49, 50 (Fla. 2d DCA 1979) ); see also State v. Aguilar , 987 So. 2d 1233, 1234–35 (Fla. 5th DCA 2008). Accordingly, the judgment and sentence entered in case number 2018 CF 010224 is void and must be vacated. See Wilkins v. State , 90 So. 3d 305, 306 (Fla. 1st DCA 2012) (reversing the judgment and sentence entered on a charge that the State had nolle prossed and remanding for vacatur of sentence); Freccacreto v. State , 291 So. 2d 630, 631 (Fla. 4th DCA 1974) (vacating, setting aside, and declaring void the judgment and sentence entered on a charge that the State had nolle prossed).
To the extent that Spicer seeks discharge in circuit court case number 2018 CF 010212 based on the trial court's apparent "intention" in granting the State's request to enter a nolle prosequi in that case, the court's intention is irrelevant. "[T]he decision to file a nolle prosse is within the sole discretion of the [ S]tate," Braden , 375 So. 2d at 50, and a nolle prosequi is self-executing, Aguilar , 987 So. 2d at 1235. We note, however, that the State had no authority to enter a nolle prosequi in case number 2018 CF 010212 after the court had accepted Spicer's nolo contendere plea in that case. See Flores v. State , 958 So. 2d 1026, 1027 (Fla. 5th DCA 2007) ("[T]he State has no power to nolle pros a charge after jeopardy has attached. ... Because the judge had already accepted Flores' plea to the charge in count 2, the State had no authority to nolle pros count 2 ...."); State v. R.J. , 763 So. 2d 370, 371 (Fla. 4th DCA 1998) ("The state attorney may enter a nolle prosse of a count in the information at any time before a defendant's plea ... is accepted by the court.").
Finally, to the extent that Spicer otherwise seeks relief from his conviction in case number 2018 CF 010212, the clerk of the circuit court has confirmed that no final judgment and sentence has been rendered in that case. Accordingly, to that extent, we dismiss this appeal for lack of jurisdiction. See Owens v. State , 579 So. 2d 311, 312 (Fla. 1st DCA 1991) ("Without a signed written order the threshold requirement for an appeal cannot be met because without the written signed order there is nothing to appeal." (citations omitted)); see also Fla. R. App. P. 9.110(l ) (providing that except for in circumstances not applicable here, "if a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature").
Appeal dismissed in part; judgment and sentence in case number 2018 CF 010224 declared void and reversed and remanded for vacatur.
See Assessors v. Osbornes , 76 U.S. 567, 575, 9 Wall. 567, 19 L.Ed. 748 (1869) ("Usually where a court has no jurisdiction of the case the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has improperly given judgment for the plaintiff. In such a case the judgment in the court below must be reversed, else the plaintiff would have the benefit of a judgment rendered by a court which had no authority to hear and determine the matter in controversy.").
MORRIS, ROTHSTEIN-YOUAKIM, and SMITH, JJ., Concur.