affirming denial of motion to vacate default upon finding that the "stand still" period agreed to by the parties had elapsed and the plaintiff had made no attempt to file an answer to the amended counterclaim despite requesting an extension of time
How later courts described this case
- affirming denial of motion to vacate default upon finding that the "stand still" period agreed to by the parties had elapsed and the plaintiff had made no attempt to file an answer to the amended counterclaim despite requesting an extension of time
- ‘We affirm as to this issue because the error was waived by [the defendant’s] failure to raise it in his first appeal.”
- abuse of discretion is proper standard for refusal to relieve party from default
Written by the judges who cited it.
The opinion
PATTERSON, Chief Judge.
Donald Baldwin appeals for the third time his judgment and sentence for second-degree murder with a firearm. See Baldwin v. State, 700 So.2d 95 (Fla. 2d DCA 1997); Baldwin v. State, 666 So.2d 240 (Fla. 2d DCA 1996). In this appeal following his second resentencing, Baldwin argues that the trial court erred in enhancing the charge from a first-degree felony to a life felony for the use of a firearm because the use of a firearm was an element of the offense. We affirm as to this issue because the error was waived by Baldwin’s failure to raise it in his first appeal. We find no merit in the remaining points in Baldwin’s initial brief.
In his supplemental brief, Baldwin argues that the trial court had no jurisdiction to enter an amended sentence several months after the judgment and sentence on appeal was rendered. The amended sentence added a three-year minimum mandatory sentence for the use of a firearm. We agree that the trial court lost jurisdiction when Baldwin filed his appeal. See Skaggs v. State, 620 So.2d 1304 (Fla. 2d DCA 1993). Accordingly, we strike the amended sentence entered on October 9, 1998, and reinstate the sentence of May 14,1998.
Affirmed in part; reversed in part. BLUE and GREEN, JJ., Concur.