DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN S. CAMMALLERI,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-3518
[January 23, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 2014-CF-
000067-A.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.
ON MOTION FOR REHEARING
PER CURIAM.
We grant appellant’s motion for rehearing as it pertains to the final
judgment imposing civil lien and affirm appellant’s conviction and
sentence in all respects. We vacate our prior opinion and substitute the
following.
After appellant was convicted and sentenced for one count of sexual
battery on a child under 12, the trial court entered a final judgment
imposing civil lien, which stated:
THIS MATTER having come before the Court on September
30, 2016 pursuant to Florida Statute Section 960.293(2)(b)
and finding that the Defendant has been convicted of an
offense other than a capital or life felony and that damages are
assessed at $50 per day of incarceration, it is hereby
ORDERED AND ADJUDGED that Indian River County
(Sheriff) shall recover from the Defendant damages of
$49,500.00, and State of Florida (DOC) shall recover from the
Defendant damages of $200,500.00 which shall bear interest
at the statutory rate pursuant to Section 55.03, Florida
Statutes, for all of which let execution issue.
(Emphasis added). Thereafter, appellant filed a motion pursuant to Florida
Rule of Criminal Procedure 3.800(b)(2), asserting that the final judgment
imposing civil lien should be amended to (1) correctly reflect that the
conviction was for a capital or life felony, rather than an offense other than
a capital or life felony, and (2) remove the $50 per day of incarceration
language.
Because the trial court did not rule on the motion within the sixty-day
time period, 1 appellant moved for rehearing on the pending rule 3.800(b)
motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(1)(B).
Forty-two days after the motion for rehearing was filed, the trial court
ordered an expedited responsive pleading on the rule 3.800(b)(2) motion.
In response, the state conceded the judgment should be amended to
correctly reflect that appellant was convicted of a capital felony and that
$250,000 be assessed as liquidated damages for the cost of incarceration.
The trial court granted appellant’s rule 3.800(b) motion and amended the
first paragraph of the final judgment to state:
THIS MATTER having come before the Court on September
30, 2016 pursuant to Florida Statute Section 960.293(2)(b)
and finding that the Defendant has been convicted of a capital
or felony offense, and that damages are assessed as follows.
Although appellant acknowledges on appeal that the trial court granted
the rule 3.800(b) motion and entered an amended final judgment with the
aforementioned changes, he notes that the order was rendered after the
expiration of the applicable time periods set forth in rule 3.800(b).
“Florida Rule of Criminal Procedure 3.800(b) expressly provides that
the trial court must rule on a motion to correct sentencing error within
sixty days of filing or the motion is deemed denied.” Wilson v. State, 846
So. 2d 1201, 1203 (Fla. 4th DCA 2003) (citing Fla. R. Crim. P. 3.800(b).
“Once the sixty days has passed with no action on the motion, the trial
court’s jurisdiction ends.” Id. Rule 3.800(b)(2)(B) further provides that the
trial court must rule on a timely motion for rehearing within 40 days from
1According to the trial court, the motion was e-filed, but “never served and/or
provided to the court.”
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the date of the order of which rehearing is sought or the motion is deemed
denied.
In this case, the trial court did not rule on the rule 3.800(b) motion
within 60 days, nor did it rule on the motion for rehearing within 40 days.
Accordingly, the trial court lacked jurisdiction to grant the 3.800(b) motion
and the subsequent amended final judgment is deemed a nullity.
We therefore remand for entry of a corrected, amended final judgment
imposing civil lien in accordance with this opinion.
Affirmed in part, reversed in part, and remanded.
GROSS, MAY, JJ., and CARACUZZO, CHERYL, Associate Judge, concur.
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