DAVID O. PAYET vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 12, 2022
• Docket: 22-0547
• Status: Published

Opinion

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.