TIMOTHY OVERWAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed conviction for aggravated child abuse but reversed and remanded for resentencing to comply with Heggs v. State sentencing requirements.
A defendant is entitled to resentencing that complies with Heggs v. State even when the trial court's corrective sentence was entered outside the 60-day rule window.
[1] A defendant is entitled to a sentence complying with Heggs v. …
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Join FLexlaw to unlock all legal intelligenceOverway was convicted of two counts of aggravated child abuse involving separate incidents—striking a child in the abdomen and holding the child's han…
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HARRIS, J.
Overway raises two points on this appeal.
First he contends there is a double jeopardy violation caused by his two convictions for aggravated child abuse. In our initial decision in this matter (Overway v. State, 718 So. 2d 308 (Fla. 5th DCA 1998)), we concluded that no double jeopardy problem existed but reversed one conviction because of an error in the instructions-. .Upon conviction of this count on retrial, the issue relating to double jeopardy has not changed and we adhere to the original ruling.
We note, however, that there were two allegations of aggravated child abuse which were separate- striking the child in the abdomen and holding his hands under hot water. As to Overway’s second point, he urges that his sentence does not comport with Heggs v. State, 759 So. 2d 620 (Fla.2000).
Although he raised this error under Florida Rules of Criminal Procedure 3.800(b)(2) and received appropriate relief from the trial court, because the court’s corrective sentence was entered after the 60 days provided by the rule had run we held the corrective sentence to be a nullity. See Overway v. State, 769 So. 2d 520 (Fla. 5th DCA 2000).
The State does not deny that Overway’s official sentence is wrong but urges that since the Department of Corrections has implemented the “invalid” correction, Overway has suffered no injury.
We agree with Overway, however, that he is entitled to a sentence which comports with Heggs and reverse and remand in order to permit the trial judge to again enter its original corrective sentence.
AFFIRMED in part; REVERSED and REMANDED for resentencing.
GRIFFIN and SAWAYA, JJ., concur.
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Davila v. State, 26 So. 3d 5 (Fla. 3d DCA 2009)…sue. We remand for that purpose. The defendant maintains that it was a double jeopardy violation to charge him with multiple acts of aggravated child abuse occurring over a six-month period. We reject the defendant’s argument. See Overway v. State, 783 So. 2d 373, 373-74 (Fla. 5th DCA 2001); see also State v. Meshell, 2 So. 3d 132, 135 (Fla.2009); McKnight v. State, 906 So. 2d 368, 370-72 (Fla. 5th DCA 2005); Marion v. State, 674 So. 2d 878, 879 (Fla. 3d DCA 1996). We affirm regarding the remaining issues o…
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Latravia Rodriguez McGILL v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004)…bation is also to run concurrent with all probationary terms. However, because the order was entered beyond the 60 day period provided in rule 3.800, it is a nullity. See Kimbrough v. State, 766 So. 2d 1255 (Fla. 5th DCA 2000). In Overway v. State, 783 So. 2d 373 (Fla. [*1272] 5th DCA 2001), this court held that in circumstances such as presented here, reversal and remand to permit the trial court to‘-again enter its corrective sentence is appropriate. Accordingly, we reverse the sentence in Case No. 02-8506…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Overway v. State, 718 So. 2d 308 (Fla. 5th DCA 1998)
- Overway v. State, 769 So. 2d 520 (Fla. 5th DCA 2000)