MARLEY JANE BARBERIAN v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: December 4, 2019
• Docket: 19-1471
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

MARLEY JANE BARBERIAN, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D19-1471

[December 4, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case Nos. 502018CF000253A and 502018CF010325A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

No appearance for appellee.

PER CURIAM.

The defendant appeals a revocation of probation order and a judgment and sentence for resisting an officer with violence, battery on a law enforcement officer, and falsely accusing a law enforcement officer of sexual battery. We affirm the order of revocation, judgment, and sentence without further comment.

The defendant filed a notice of appeal and subsequently filed a pro se motion to reduce or modify sentence. The trial court entered an order denying the motion. The trial court should have dismissed the motion for lack of jurisdiction rather than ruling on it. The filing of the notice of appeal divested the trial court of jurisdiction to hear the motion. See Johnson v. State, 154 So. 3d 1184, 1185-86 (Fla. 4th DCA 2015). We remand for the trial court to vacate its order denying the defendant’s pro se motion to reduce or modify sentence and enter an order dismissing the motion without prejudice. See Underwood v. State, 272 So. 3d 858, 858 (Fla. 2d DCA 2019). The defendant will have sixty days from the date our mandate issues to file a motion to reduce or modify her sentence in the trial court. Fla. R. Crim. P. 3.800(c). Affirmed; remanded with instructions.

WARNER, FORST and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.