LAURO VAZQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse and remand with directions to vacate the sentence that was imposed on resentencing on count IV, and resentence appellant on count IV to a sentence of no more than 15 years in prison, to run concurrently with the 25-year concurrent sentences in counts I through III. See Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983) (increase of lawful sentence prohibited); Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989) (court may correct illegal sentence at any time but may not modify facially legal sentence on another count); Pelfrey v. State, 409 So. 2d 486 (Fla. 5th DCA 1981) (error, if any, in sentence contrary to plea bargain was in defendant’s favor and more severe sentence could not be imposed on remand); Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980) (excessive sentence is unlawful only to the extent of its excess).
Additionally, the final judgment should be corrected to reflect that appellant was adjudicated guilty of “attempted” sexual battery rather than sexual battery, in counts I through III.
REVERSED and REMANDED.
DELL, GUNTHER and FARMER, JJ., concur.
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Jackson v. State, 825 So. 2d 1021 (Fla. 1st DCA 2002)…ut jurisdiction to modify a facially legal sentence imposed by it more than sixty days after its imposition. Brannan v. State, 651 So. 2d 751, 752 (Fla. 1st DCA 1995); McLemore v. State, 638 So. 2d 610, 611-612 (Fla. 1st DCA 1994); Vazquez v. State, 595 So. 2d 309 (Fla. 4th DCA 1992), citing Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989)(stating court may correct illegal sentence at any time but may not modify facially legal sentence on another count). Here, Appellant’s HFO sentences, individually, are…
Authorities Cited
- Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983)
- Neilsen Arelen Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989)
- Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980)
- Pelfrey v. State, 409 So. 2d 486 (Fla. 5th DCA 1981)