OLIMPIO CERKELLA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Olimpio Cerkella appeals the trial court’s denial of his motion filed pursuant to Rule 3.800, Florida Rules of Criminal Procedure, seeking to correct an illegal sentence. Upon the State’s proper confession of error, we remand with instructions to the trial court that Cerkella be resentenced to a term not to exceed forty years.
Reversed and remanded.
COPE, Judge
(concurring).
In my view the trial court at resentencing may consider running the count being resen- tenced (count I) consecutive to the existing 16-year sentence on count II in order to come as close as possible to the original sentencing intent. See United States v. Gruenberg, 53 F. 3d 214, 215 (8th Cir.1995); United States v. Jackson, 923 F. 2d 1494, 1498-99 & n. 5 (11th Cir.1991). Our vacating of the sentence on count I necessarily reopens all aspects of the count I sentencing order, including the question of whether count I should run consecutive to, instead of concurrent with, count II. See United States v. Jackson, 923 F. 2d at 1498-99. Even with consecutive sentencing, the aggregate term would be 55 years, well short of the original 75 years (count I) with 15 years concurrent (count II).*
*
In view of Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985), it would be inadvisable to disturb the sentencing order on count II.
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Piesus Reynolds v. State, 116 So. 3d 558 (Fla. 3d DCA 2013)…oal or intent. See Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005) (approving change of illegal sentence on remand for resentencing from concurrent to consecutive); Buchanan v. State, 781 So. 2d 449 (Fla. 5th DCA 2001) (same); Cerkella v. State, 687 So. 2d 367 (Fla. 3d DCA 1997) (concurring opinion notes that vacated sentence on count one may on remand be changed from concurrent to consecutive to count two, but “it would be inadvisable to disturb the sentencing order” on count two); Herring v. State, 411…
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Authorities Cited
- Reed v. Slakan, 470 U.S. 1035 (U.S. 1985)
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- United States v. Jackson, 923 F.2d 1494 (11th Cir. 1991)