Figone v. Downey, 89-01635

Decision Date02 August 1989
Docket NumberNo. 89-01635,89-01635
Citation547 So.2d 697,14 Fla. L. Weekly 1863
Parties14 Fla. L. Weekly 1863 James FIGONE, Petitioner, v. Honorable Brandt C. DOWNEY, III, Circuit Judge, Sixth Judicial Circuit, Respondent.
CourtFlorida District Court of Appeals

James Figone, pro se.

John A. Majestic, New Port Richey, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for respondent.

PER CURIAM.

James Figone petitions this court for a writ of prohibition to bar further proceedings by the circuit court of the Sixth Judicial Circuit in and for Pasco County, where Figone is charged with violation of community control. 1 We grant the petition.

On September 2, 1988, Figone was sentenced to thirty months in prison for defrauding an insurance company. 2 Figone filed a timely notice of appeal and that case remains pending. Figone v. State, No. 88-2812. On December 27, 1988, this court received a voluntary dismissal which, pursuant to our requirement in criminal cases, was signed by both Figone's attorney and Figone personally. However, before the court could act on the dismissal we received a second, somewhat unusual pro se document captioned "involuntary dismissal and motion to reinstate," which claimed that the prior voluntary dismissal "was not voluntary at all." When counsel failed to respond to this motion despite having been requested to do so, 3 we directed that the appeal would proceed. Nothing further was received until June 9, 1989, when Figone, again acting pro se, filed an "emergency motion" which we deemed should be treated as a petition for writ of prohibition.

The "emergency" petition relies upon the following undisputed facts. After filing the appeal in case number 88-2812, Figone apparently persuaded the trial court to vacate his prison sentence and place him on community control. It further appears that Figone, in exchange for mitigation of the sentence, agreed to dismiss the appeal. 4 This proceeding took place November 9, 1988, well over a month before the written voluntary dismissal was submitted to this court. In the meantime Figone was arrested on new felony charges, which remain pending as of this writing and which are also being invoked to violate his community control. Faced with the prospect of a return to state prison notwithstanding the outcome of the new charges, Figone argues that the trial court acted without jurisdiction when it placed him on community control and continues to lack jurisdiction over the insurance fraud case. See, e.g., Matheny v. State, 429 So.2d 1341 (Fla. 2d DCA 1983); Kelly v. State, 359 So.2d 493 (Fla. 1st DCA 1978). 5

The state appears to concede that the trial court acted without jurisdiction when it reduced the original prison sentence, but suggests that since it would have been proper for us to relinquish jurisdiction to permit litigation of the motion we should now consider such a relinquishment nunc pro tunc. However, Figone now conveniently asserts that "any previous motion for reconsideration of sentence will be withdrawn," and we know of no authority to require a defendant to accept such a modification of sentence. Furthermore, even assuming we could make such a nunc pro tunc pronouncement, we could not retroactively vivify Figone's community control such that it could then be violated for misconduct occurring during the period of jurisdictional limbo. Nor can we deny relief to Figone on any theory of "acceptance of benefits." See Wolfson v. State, 437 So.2d 174 (Fla. 2d DCA 1983).

Accordingly, the writ of prohibition is granted. The respondent is hereby directed to vacate his November 9, 1988, order placing Figone on community control, to terminate the pending proceedings for violation of community control, and to reinstate the original state prison sentence with no credit for time spent on community control. This prohibition shall not, of course, extend to any new felony charges the state may choose to...

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2 cases
  • Nelson v. State
    • United States
    • Florida District Court of Appeals
    • November 20, 1998
    ...this elementary misunderstanding of jurisdictional principles. See Holmes v. State, 711 So.2d 565 (Fla. 2d DCA 1997); Figone v. Downey, 547 So.2d 697 (Fla. 2d DCA 1989). At the same time, the State and the trial court ignored an equally fundamental precept of our constitutional law which in......
  • Key v. State, 92-01168
    • United States
    • Florida District Court of Appeals
    • May 13, 1992
    ...of direct appeal was filed in April 1988. If that is true, the trial court lacked jurisdiction to resentence Key. See Figone v. Downey, 547 So.2d 697 (Fla. 2d DCA 1989). The trial court's order, in addressing this issue, states that Key's notice of appeal was filed in May 1988. However, the......

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