CURTISS W. CARLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Curtiss Carlin appealed his sentencing on a burglary conviction and misdemeanor trespass probation violations. The trial court vacated his original burglary sentence on remand, claiming it was an illegal downward departure, but the appellate court reversed, holding that the original sentence had become final and could not be vacated absent a challenge on direct appeal.
The appellate court held that the trial court lacked authority to vacate the original burglary sentence because it had become final upon expiration of the time to file a motion for rehearing and was not affected by the prior appeal. While the sentence may have been a downward departure, it was not an illegal sentence.
[1] A sentence that is not illegal and was not challenged on appeal becomes final upon the expiration of the time to file a motion for rehearing.
[2] Community control is not a permissible sentencing option for a misdemeanor offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This sentence was unaffected by the prior appeal and became final upon the expiration of the time to file a motion for rehearing. This sentence may have originally been a downward departure but it was not an illegal sentence.”
The court's holding that an unchallenged sentence becomes final and cannot be vacated on remand merely because the trial court views it as an improper downward departure.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCarlin was charged with burglary of a dwelling (second-degree felony) and violating probation for two misdemeanor trespass counts. He pled no contest …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Guidelines Sentence cases and more on FLexlaw
GRIFFIN, Judge.
Appellant, Curtiss Carlin, was charged by information with burglary of a dwelling, a second degree felony, in lower court case number 92-31689, and with violating the probation he received for two counts of misdemeanor trespass in lower court case number 89-7243. For the burglary, Carlin’s guidelines seoresheet showed a total of seventy-six points, for a recommended sentence of three years in prison and a permitted sentence of community control or one to four and a half years in prison. He pled no contest to the charges in return for a “low-end” guidelines sentence. He was sentenced to five years drug offender probation for the felony and separately received one year concurrent sentences of community control for each of the misdemeanors.
On a prior appeal of both cases, this court vacated the sentences Carlin received for the two misdemeanors since community control is not a sentencing option for a misdemeanor. Carlin v. State, 626 So. 2d 316 (Fla. 5th DCA 1993).
However, on remand to the circuit court, the trial court not only resentenced Carlin for the misdemeanors, but vacated the sentence for the burglary on the ground that the remaining five year probationary sentence for the burglary constituted a downward departure from the guidelines without written reasons. For the burglary, Carlin was resenteneed to three years in the Department of Corrections, suspended to two years community control, followed by three years probation. For each of the trespasses, Carlin received 364 days in the county jail, to be served concurrently, with credit for 364 days served.
We affirm the sentences for trespass, but reverse that portion of the trial court’s order which vacated Carlin’s earlier sentence for burglary. This sentence was unaffected by the prior appeal and became final upon the expiration of the time to file a motion for rehearing. This sentence may have originally been a downward departure but it was not an illegal sentence. Gartrell v. State, 626 So. 2d 1364 (Fla.1993); Fasenmyer v. State, 457 So. 2d 1361,1366 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985); Kelly v. State, 508 So. 2d 788, 789 (Fla. 5th DCA 1987).
While an appellate court does have the power to vacate sentences which were not challenged on appeal in order to permit the trial court to effectuate its original sentencing scheme, Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990), this is not what occurred in this case.
Accordingly, Carlin’s original sentence in case number 92-31689 is hereby reinstated. The sentences for the trespasses are affirmed.
SENTENCE CORRECTED.
COBB and W. SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Martinez-Yanez v. State, 779 So. 2d 588 (Fla. 2d DCA 2001)…sary jurisdiction to resentence on the armed burglary. The sentence for the armed burglary was not overturned, and the original conviction and sentence became final with the expiration of the time to file a motion for rehearing. See Carlin v. State, 648 So. 2d 261, 262 (Fla. 5th DCA 1994). The trial court’s reading of this court’s earlier opinion, which remanded for resentencing, as a decision vacating the armed burglary sentence is error. When this court reversed the felony murder conviction and sentence, a…1 / 2
-
Pennington v. State, 120 So. 3d 647 (Fla. 5th DCA 2013)…trial judge’s desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court. Id. at 1365-1366. See also Carlin v. State, 648 So. 2d 261 (Fla. 5th DCA 1994); Ruffin v. State, 589 So. 2d 403 (Fla. 5th DCA 1991); McKinley v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988); Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987). Accordingly, the defendant’s sentence on his conviction for leavin…
Authorities Cited
- Gartrell v. State, 626 So. 2d 1364 (Fla. 1993)
- Reed v. Slakan, 470 U.S. 1035 (U.S. 1985)
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990)
- Dolan Robert Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987)
- Curtiss W. Carlin v. State, 626 So. 2d 316 (Fla. 5th DCA 1993)