KIMBERLY CARUSO v. STATE OF FLORIDA , 264 So. 3d 361 ( 2019 )


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  •               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    KIMBERLY CARUSO,                         )
    )
    Appellant,                  )
    )
    v.                                       )     Case No. 2D16-5185
    )
    STATE OF FLORIDA,                        )
    )
    Appellee.                   )
    )
    Opinion filed February 13, 2019.
    Appeal from the Circuit Court for Lee
    County; Bruce E. Kyle, Judge.
    Robert P. Harris of Robert Harris Law
    Firm, Fort Myers, for Appellant.
    Ashley Brooke Moody, Attorney
    General, Tallahassee, and C. Todd
    Chapman, Assistant Attorney General,
    Tampa, for Appellee.
    ROTHSTEIN-YOUAKIM, Judge.
    On this appeal of the final judgment, sentence, and order of probation,
    Kimberly Caruso challenges the trial court's denial of her presentencing motion to
    withdraw her no contest plea to DUI manslaughter. We reject those challenges without
    further comment and affirm.
    We do, however, address another matter that has come to our attention.
    After Caruso filed her notice of appeal in this case, the State moved in the trial court to
    modify Caruso's sentence—fourteen years' imprisonment followed by six years'
    probation—to include a four-year mandatory minimum term of imprisonment. Caruso's
    filing of the notice of appeal, however, vested this court with jurisdiction over the
    judgment and sentence, see Knapp v. State, 
    741 So. 2d 1150
    , 1151 (Fla. 2d DCA
    1999), and this court did not relinquish jurisdiction for any purpose. Nonetheless, the
    trial court orally granted the State's motion while this appeal was pending and entered
    an amended judgment and sentence that included the four-year mandatory minimum
    term. The court had not retained jurisdiction to consider the State's motion pursuant to
    Florida Rule of Criminal Procedure 9.600(d) because the motion was not authorized
    under Florida Rule of Criminal Procedure 3.800(b)(2): it sought neither to benefit
    Caruso nor, in light of the court's failure to orally pronounce the mandatory minimum
    term at sentencing, to correct a scrivener's error. See Linnon v. State, 
    988 So. 2d 70
    ,
    72-73 (Fla. 2d DCA 2008).
    The trial court, therefore, lacked jurisdiction to amend the judgment and
    sentence while it was on appeal to this court. See 
    id.
     at 72 (citing Knapp, 
    741 So. 2d at 1151-52
    ); see also Kessler v. City of Naples, 
    779 So. 2d 378
    , 379 (Fla. 2d DCA 2000)
    (sua sponte vacating order that trial court had entered without jurisdiction in light of
    separate pending appeal); Duncan v. Duncan, 
    598 So. 2d 205
    , 207 (Fla. 2d DCA 1992)
    ("[A] trial court does not have jurisdiction to enter an order which modifies the substance
    of a final judgment after a party files a notice of appeal."). And, having done so, it has
    interfered with our jurisdiction. Cf. Schultz v. Schickedanz, 
    884 So. 2d 422
    , 424 (Fla.
    -2-
    4th DCA 2004) ("[A] trial court is divested of jurisdiction upon notice of appeal except
    with regard to those matters which do not interfere with the power and authority of the
    appellate court or with the rights of a party to the appeal which are under consideration
    by the appellate court." (alteration in original) (quoting Palma Sola Harbour Condo., Inc.
    v. Huber, 
    374 So. 2d 1135
    , 1138 (Fla. 2d DCA 1979))). Accordingly, we affirm the trial
    court's original judgment, sentence, and order of probation and remand for vacatur of
    the amended judgment and sentence. Our remand for vacatur is not a comment on the
    merits of the State's motion and is without prejudice to the State's seeking appropriate
    relief, if any, following the issuance of the mandate in this appeal.
    Affirmed; remanded with instructions.
    LaROSE, C.J., and KHOUZAM, J., Concur.
    -3-