ANTWUAN LOPEZ GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1994-04-22
No. 92-4024
ERVIN and WEBSTER, JJ., concur.
635 So. 2d 1017 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 13 cases

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Synopsis

Antwuan Lopez Gordon appealed sentences imposed after remand from a prior appellate decision. The court affirmed sentences for Counts II and III but vacated and remanded sentences for Counts I and IV, holding that the trial court lacked authority to resentence on counts not disturbed by the appellate mandate.


Holding

The trial court lacked authority to modify legal sentences on Counts I and IV because the appellate court's remand order did not disturb those judgments. The court vacated the sentences on Counts I and IV and remanded for reinstatement of the original sentences to eliminate ambiguity and ensure compliance with the appellate mandate.


Headnotes

[1] A trial court may not increase the severity of a sentence on a conviction that was not challenged on appeal and was fully satisfied by its terms at the time of resentenci…

[2] A trial court may not resentence a defendant on a conviction for which no sentence was previously imposed if the appellate court did not disturb that conviction or senten…

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Key Quotes

“a trial court, when correcting an illegal sentence on one count of an information, does not have the authority to modify legal sentences that have been rendered on the other counts.”

Establishes the core principle from Seago that trial courts lack authority to modify sentences on counts not subject to appellate reversal.

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Facts & Procedural History

Gordon was convicted of burglary of a dwelling, attempted sexual battery with force, aggravated battery on a person over 65, and robbery. The trial co…

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Opinion of the Court
SHIVERS, Senior Judge.

SHIVERS, Senior Judge.

Antwuan Lopez Gordon has appealed from sentences imposed after remand in Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992). We affirm the sentences imposed for Counts II and III of the information, but vacate the sentences imposed for Counts I and IV and remand for reinstatement of the original sentences.

Gordon was convicted of: I. burglary of a dwelling, II. attempted sexual battery with force likely to cause great bodily harm, III. aggravated battery on a person over 65, and IV. robbery. The trial court imposed the following habitual felony offender sentences: I. 30 years, II. 10 years (consecutive to I), III. life (concurrent with I and II), and IV. 30 years (concurrent with I, II, and III). This court initially affirmed with directions to correct the judgment on Count II to reflect conviction of the third-degree felony of attempted sexual battery with slight force. Gordon v. State, 603 So. 2d 512, 513 (Fla. 1st DCA 1992). On rehearing, the court additionally reversed the conviction as to Count III, and remanded for entry of a judgment for a second-degree felony; the court ordered resentencing as to both counts. Gordon, 603 So. 2d at 514.

At the resentencing proceeding held pursuant to the Gordon mandate, the trial court resentenced Gordon not only as to Counts II and III, but as to Counts I and IV as well. It orally imposed the following habitual felony offender sentences: I. 30 years (consis tent with the original sentence), II. 10 years (consecutive to I), and III. 30 years (concurrent with I and II). As to Count IV, the court orally imposed the original 30-year habitual felony offender sentence. It initially indicated that, as before, it was to run concurrently with the other sentences. However, the court later stated, “This, the sentence in Count IV is consecutive.” The written sentence as to Count IV indicated, consistently with the latter pronouncement, that the 30-year term was to run consecutively to Counts I — III.

Gordon argues on appeal that the trial court had no authority to resentence him as to Counts I and IV, citing Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984) (on remand after appeal, the trial court is not authorized to modify sentences not disturbed by the appellate court). He seeks remand for reinstatement of the original sentences as to those counts. The state maintains that re-sentencing on all counts was proper “to create a single, uniform record,” However, it notes that the written sentence as to Count IV indicates that it is to run consecutively, and seeks remand for its conformance to the oral pronouncement that it was to run concurrently. The state does not address the trial court’s later oral pronouncement that the Count IV sentence was to run consecutively.

In Seago v. State, 627 So. 2d 1316 (Fla. 2d DCA1993), Seago was convicted of dealing in stolen property, uttering, fleeing to elude, battery on a law enforcement officer, and resisting arrest with violence. The trial court later set aside the conviction for dealing in stolen property. It resentenced Seago on the remaining offenses, imposing consecutive (rather than the original concurrent) terms. The appellate court reversed, holding that “a trial court, when correcting an illegal sentence on one count of an information, does not have the authority to modify legal sentences that have been rendered on the other counts.” Seago, 627 So. 2d at 1316, citing Fasenmyer. The court reversed and remanded with directions to reinstate the original sentences on the remaining counts.

In this case, the Gordon court ordered resentencing only as to Counts II and III. It did not disturb the judgments and sentences as to Counts I and IV. Hence, the trial court had no authority to modify the legal sentences imposed as to those counts. Fasenmyer; Seago. As to Count I, the trial court imposed the original sentence. Thus, any error could be classified as harmless. However, the record is ambiguous as to whether the trial court intended to re-impose the original sentence as to Count IV, or to impose a modified sentence, i.e., to run consecutively rather than concurrently. Therefore, for clarity’s sake, we vacate the sentences imposed as to Counts I and IV, and remand for reinstatement of the original sentences as to those counts.

ERVIN and WEBSTER, JJ., concur.


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Citator

Cited By

  • Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)
    …after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court.” Id. at 1366; see also Burnett v. State, 890 So. 2d 335 (Fla. 2d DCA 2004); Seago v. State, 627 So. 2d 1316 (Fla. 2d DCA 1993); Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994).7 This analysis has also been applied in the context of a defendant’s motion to correct sentence pursuant to rule 3.800(b)(2). This court has specifically held that a motion to correct sentence directed to the sentence on one co…
  • Piesus Reynolds v. State, 116 So. 3d 558 (Fla. 3d DCA 2013)
    …a legal sentence on another count”); Kenny v. State, 916 So. 2d 38 (Fla. 4th DCA 2005) (holding trial court “lacked jurisdiction” to resentence defendant in two later cases not implicated in his motion to correct sentencing error); Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994) (order remanding for resentencing on counts II and III did not permit trial court to modify legal sentences on counts I and IV); Seago v. State, 627 So. 2d 1316 (Fla. 2d DCA 1993) (reversing trial court which resen-tenced on coun…
  • Kenny v. State, 916 So. 2d 38 (Fla. 4th DCA 2005)
    …red by a line of cases involving resentencing defendants after appeals. See Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984); Burnett v. State, 890 So. 2d 335 (Fla. 2d DCA 2004); De La Cosa v. State, 784 So. 2d 452 (Fla. 3d DCA 2000): Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994).. Fasenmyer, which the other cases cited followed, concluded that aggregate sentencing as it relates to a trial judge’s intent to effectuate the original sentencing does not justify modification of sentences not challenged on app…

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