JAY MCMULLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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It is improper to increase a defendant's punishment by changing concurrent sentences to consecutive ones at a resentencing required by an appeal.
Appellant was resentenced to consecutive prison terms after his original sentence, which exceeded the statutory maximum, was reversed. This resentenci…
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PER CURIAM.
Jay Allen McMullen appeals from denial of his motion for relief from an illegal sentence as permitted by rule 3.800(a), Florida Rules of Criminal Procedure. Appellant was originally sentenced to fifty years in prison and ten years of probation on each of the counts of which he was convicted, the sentences to run concurrently. Because his sentence as originally imposed exceeded the statutory maximum, we reversed in McMullen v. State, 570 So. 2d 1032 (Fla. 4th DCA 1990).
Appellant was resenteneed upon remand to a thirty year prison term on Count I, to twenty years on Count II, and to ten years probation on Count III, but with these sentences to run consecutively. This prompted the present appeal.
We reverse and remand for resentencing. In the absence of unusual circumstances (and none were present • here) it is improper to increase a defendant’s punishment by changing concurrent terms to consecutive terms at a resentencing required by reversal of an original sentence. Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992); Tannihill v. State, 559 So. 2d 608 (Fla. 4th DCA 1990); Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979).
We find no other errors in the sentence.
REVERSED AND REMANDED.
HERSEY, WARNER, and KLEIN, JJ., concur.
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Everett v. State, 824 So. 2d 211 (Fla. 1st DCA 2002)…), to support his argument on appeal that consecutive sentences cannot be imposed on resen-tencing where concurrent sentences were originally imposed, the Fourth District has specifically stated the following: Appellant relies on McMullen v. State, 631 So. 2d 1126 (Fla. 4th DCA 1994), in which we applied a principle previously adopted by this court to the effect that where the original sentences are concurrent, the sentences on remand must also be concurrent, regardless of the length. We adopted that rule in…
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Britt Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999)…. 4th DCA 1996). At the resentencing hearing, the trial court gave appellant 8 years in prison for the armed burglary and 10 years probation for the aggravated battery, with the sentences to run consecutively. Appellant relies on McMullen v. State, 631 So. 2d 1126 (Fla. 4th DCA 1994), in which we applied a principle previously adopted by this court to the effect that where the original sentences are concurrent, the sentences on remand must also be concurrent, regardless of the length. We adopted that rule in…
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Moore v. State, 728 So. 2d 795 (Fla. 2d DCA 1999)…laimed, even though the total length of his sentences did not change when the court resentenced him. Moore argued the court’s resentencing scheme violated his plea agreement because of this possibility of increased punishment. See McMullen v. State, 631 So. 2d 1126 (Fla. 4th DCA 1994) (disapproving of court imposing consecutive sentences on resentencing after defendant’s original concurrent sentences were found to be illegal, even though total length of defendant’s sentence did not change). When passing upon M…
Authorities Cited
- Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979)
- Tannihill v. State, 559 So. 2d 608 (Fla. 4th DCA 1990)
- Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992)
- Galloway v. Law Offs. of Merkle, Bright & Sullivan, P.A., 596 So. 2d 1205 (Fla. 4th DCA 1992)
- McMULLEN v. State, 570 So. 2d 1032 (Fla. 4th DCA 1990)