JAMES EUGENE BUCHANAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Buchanan appeals his corrected sentences on ten third-degree felony convictions, arguing the trial court erred in modifying his concurrent seven-year sentences to four years concurrent followed by three years concurrent. The appellate court affirmed the restructured sentences, holding that trial courts may legally restructure sentences by changing concurrent to consecutive terms provided there is no evidence of vindictiveness.
The trial court did not err in correcting and restructuring Buchanan's sentences. A trial court may legally restructure a defendant's sentences by changing concurrent terms to consecutive terms, provided the new sentence does not constitute vindictive punishment. The record contains no evidence of vindictiveness, and Buchanan raised no such claim.
[1] A trial court may correct an illegal sentence even after an appeal has been filed.
[2] A motion to correct a sentence filed under rule 3.800(b)(2) of the Florida Rules of Criminal Procedure is deemed denied if not ruled upon within sixty days.
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Join FLexlaw to unlock all legal intelligence“A trial court can legally restructure a defendant's sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.”
Establishes the legal standard governing whether trial courts may modify sentence structure without constitutional violation.
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Join FLexlaw to unlock all legal intelligenceBuchanan was charged with eleven third-degree felonies and three misdemeanors across two separate cases. Pursuant to a plea agreement, he pleaded nolo…
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PALMER, J.
James Buchanan appeals his sentences arguing that the trial court erred in cor recting his sentence under rule 3.800(b)(2)(B) of the Florida Rules of Criminal Procedure. We disagree and therefore affirm.
In two separate cases, Buchanan was charged with eleven third degree felonies and three misdemeanors. Pursuant to a negotiated plea agreement, he pled nolo contendere to ten third degree felonies in exchange for the State’s agreement to nolle prosequi one felony and three misdemeanor charges. The State further agreed to make no objection to the imposition of a combined sentence which would not exceed a term of seven years imprisonment. The trial court accepted the plea and sentenced Buchanan to concurrent terms of seven years imprisonment on each felony.
Buchanan appealed his sentences. While the appeal was pending, he filed a motion pursuant to rule 3.800(b)(2)of the Florida Rules of Criminal Procedure seeking to correct his sentences, contending that they were illegal because the maximum sentence allowed for a third degree felony is five years. See § 775.082(3)(d), Fla. Stat. (1999). Said motion was not ruled on by the trial court within sixty days and, accordingly, was deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B).
Prior to filing its answer brief, the State filed a motion with the trial court seeking to correct Buchanan’s sentences, acknowledging that the original sentences were illegal because they exceeded the statutory maximum allowed for third degree felonies. The trial court granted the State’s motion and restructured Buchanan’s sentences, imposing concurrent four year sentences on each felony from the first case, followed by concurrent three year sentences on each felony from the second case, thereby achieving the original intent of the negotiated plea.
Buchanan now contends that the entry of the corrected sentences was error. We disagree. A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive. See Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999); Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982). Here, the record does not suggest, nor does Buchanan raise, a claim of vindictiveness. Accordingly, we affirm.
Judgments and Sentences AFFIRMED.
COBB and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Richardson v. State, 821 So. 2d 428 (Fla. 5th DCA 2002)…ion. We disagree with Richardson as to the first point. “A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.” Buchanan v. State, 781 So. 2d 449, 450 (Fla. 5th DCA 2001). However, we find merit in Richardson’s contention that increasing his sentence from an aggregate of twenty-seven years to thirty years in prison was vindictive. The Pearce presumption of vindictiveness does not apply in eve…
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Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005)…ned concurrent instead of being changed to consecutive. “A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.” Buchanan v. State, 781 So. 2d 449, 450 (Fla. 5th DCA 2001) (citing Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999); Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)). In Tilley v. State, 871 So. 2d 294 (Fla. 5th DCA 2004), a case analogous to the instant case, the defendant f…
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James v. State, 868 So. 2d 1242 (Fla. 4th DCA 2004)…can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.’ ” Richardson v. State, 821 So. 2d 428, 431 (Fla. 5th DCA 2002)(quoting Buchanan v. State, 781 So. 2d 449, 450 (Fla. 5th DCA 2001)). We note that m eases where the defendant has filed a motion to correct illegal sentence and subsequently challenged re-sentencing on the basis that a harsher sentence was imposed, Florida courts have found the Pearce pres…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)
- Britt Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999)