Cletus Ray Thompson v. State of Florida

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

CLETUS RAY THOMPSON, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D16-1519

STATE OF FLORIDA,

Appellee. _____________________________/ Opinion filed October 16, 2017.

An appeal from the Circuit Court for Clay County. Don H. Lester, Judge.

Diana L. Johnson and Matthew I. Lufrano of Johnson and Lufrano, P.A., Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Cletus R. Thompson was found guilty of armed burglary, aggravated battery with a deadly weapon, and aggravated assault. The trial court sentenced Thompson and reserved jurisdiction to address restitution, but judgment was entered and Thompson filed a notice of appeal after his motion to withdraw plea was denied.

Soon after the notice of appeal was filed, the trial court held a restitution hearing and ordered Thompson to pay restitution. The State properly concedes that it was reversible error to do so because the trial court lacked jurisdiction. See Smith v. State, 39 So. 3d 471, 472 (Fla. 1st DCA 2010) (“[T]he trial court did not have jurisdiction to enter the restitution order because it was rendered months after Smith filed his notice of appeal.”) Accordingly, we affirm the judgment and sentence, but strike the restitution order and remand to the trial court for further proceedings.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions. WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.