       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            CHAD E. CARTER,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-2485

                              [June 13, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562001CF003713A.

   Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

   The defendant appeals from the second and third of three sentencing
orders which the circuit court issued following the defendant’s violation of
probation on count three. We affirm the second order without prejudice,
and reverse the third order because the circuit court lacked jurisdiction.

   On July 20, 2017, the circuit court entered the first order, sentencing
the defendant on count three to seventy-two months’ imprisonment with
credit for 790 days served.

    On August 1, 2017, the circuit court entered the second order,
increasing the defendant’s sentence on count three to eighty-four months’
imprisonment with credit for 790 days served. The defendant, without
filing a Florida Rule of Criminal Procedure 3.800 motion to correct
sentencing error or otherwise objecting to the trial court, filed a notice of
appeal with this court on the following day, to argue that the second order
violated double jeopardy.
   On August 31, 2017, while the defendant’s appeal of the second order
was pending, the circuit court entered a third order returning the
defendant’s sentence on count three to seventy-two months’
imprisonment, but reducing the credit from 790 to 471 days served.

   The defendant’s initial brief followed.

   The defendant argues the circuit court erred in entering the second
order, because the second order violated double jeopardy. See State v.
Akins, 69 So. 3d 261, 269 (Fla. 2011) (“[O]nce a sentence has been
imposed, the sentencing hearing has ended, and the defendant has begun
to serve his sentence, the sentence may not thereafter be made more
onerous, such as by extending the term of imprisonment.”).

    The defendant argues the circuit court erred in entering the third order
for two reasons: (1) the defendant’s notice of appeal of the second order
divested the circuit court of jurisdiction to enter the third order, see Hicks
v. State, 227 So. 3d 135, 136 (Fla. 4th DCA 2017) (“[B]ecause appellant
had already filed his notice of appeal, the trial court lacked jurisdiction to
modify the sentence.”); and (2) on the merits, “a trial court may not rescind
jail credit that was previously awarded, even if the initial award was
improper, because such an action violates double jeopardy.” Stang v.
State, 24 So. 3d 566, 570 (Fla. 2d DCA 2009).

    As to the second order, we are compelled to affirm because the
defendant did not preserve the alleged error by bringing the alleged error
to the circuit court’s attention by objecting at the time of sentencing or by
filing a rule 3.800 motion to correct sentencing error. See Fla. R. App. P.
9.140(e) (“A sentencing error may not be raised on appeal unless the
alleged error has first been brought to the attention of the lower tribunal:
(1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of
Criminal Procedure 3.800(b).”); Hobgood v. State, 166 So. 3d 840, 845 (Fla.
4th DCA 2015) (“A defendant must preserve a sentencing error by objecting
at the time of sentencing or in a motion under Florida Rule of Criminal
Procedure 3.800(b).”) (citation and quotation marks omitted).            Our
affirmance is without prejudice for the defendant to file with the circuit
court a rule 3.800 or rule 3.850 motion directed to the second order. See,
e.g., Martinez v. State, 211 So. 3d 989, 992 (Fla. 2017) (“[A] sentence that
has been unconstitutionally enhanced in violation of the double jeopardy
clause is illegal and, therefore, may be corrected under rule 3.800(a).”).

   As to the third order, we agree with the defendant that because the
defendant’s appeal of the second order divested the circuit court of
jurisdiction to enter the third order, we must reverse the third order. We

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therefore do not reach the merits of the defendant’s argument that the
third order violates double jeopardy.

  Affirmed in part without prejudice; reversed in part.

GROSS and CONNER, JJ., concur.

                           *        *         *

  Not final until disposition of timely filed motion for rehearing.




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