Cortez Hatten v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: November 5, 2014
• Docket: 12-5504
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

CORTEZ HATTEN, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D12-5504

STATE OF FLORIDA,

Appellee.

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Opinion filed November 6, 2014.

An appeal from the Circuit Court for Gadsden County. Jonathan E. Sjostrom, Judge.

Melissa Joy Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In this direct appeal, Appellant seeks review of his judgment and sentence

for manslaughter (count I), attempted second degree murder (count III), and possession of a firearm by a convicted felon (count V). He raises five issues: (1)

the trial court erred in denying his motion for judgment of acquittal on count III;

(2) the jury instructions for justifiable use of deadly force were fundamentally

erroneous; (3) the statute upon which count V was based is unconstitutionally

vague; (4) his 40-year sentence for count I is illegal because the 25-year mandatory

minimum imposed for that count under the 10-20-Life statute already exceeded the

statutory maximum for manslaughter and no other statute authorized the portion of

the sentence exceeding the mandatory minimum; and (5) the trial court erred in

imposing several costs. The latter two issues were preserved by a motion filed

pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

We affirm the first and second issues without comment. We affirm the third

issue based upon Weeks v. State, 146 So. 3d 81 (Fla. 1st DCA 2014), and Kraay v.

State, 39 Fla. L. Weekly D1950 (Fla. 1st DCA Sept. 10, 2014). We affirm the

fourth issue based upon Kelly v. State, 137 So. 3d 2 (Fla. 1st DCA 2014), and as

we did in Kelly, we certify conflict with Wiley v. State, 125 So. 3d 235 (Fla. 4th

DCA 2013), to the extent that case held that a trial court may not impose a

sentence in excess of the mandatory minimum imposed under the 10-20-Life

statute unless such a sentence is authorized by another statute.

With respect to the fifth issue, we remand for correction of the following

minor sentencing errors: imposition of a $230 cost pursuant to section

2 938.05(1)(a), Florida Statutes, when the statutory maximum is $225; imposition of

a $415 cost pursuant to section 775.083(2), Florida Statutes, when the statutory

maximum is $50; and imposition of the $100 cost of prosecution without citing the

statutory basis for the cost. We recognize that, during the pendency of this appeal,

the trial court entered a corrected judgment to correct these sentencing errors;

however, that judgment is a legal nullity because it was filed more than 60 days

after Appellant filed his rule 3.800(b)(2) motion. See Fla. R. Crim. P.

3.800(b)(1)(B); Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013). We see no

reason that the trial court could not simply reenter the corrected judgment on

remand. Appellant need not be present.

AFFIRMED and REMANDED with directions; CONFLICT CERTIFIED.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., CONCUR.