ANTHONY TEDESCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed probation revocation but reversed and remanded the upward departure sentence because the trial court failed to consider the corrected nunc pro tunc order that reflected the defendant's negotiated plea agreement.
The trial court's upward departure sentence must be reconsidered because it relied on the original November 15, 1989 sentence rather than the December 4, 1989 nunc pro tunc order that correctly reflected the defendant's plea agreement.
[1] When a trial court considers a sentencing issue, it must rely on the corrected nunc pro tunc order that reflects the defendant's negotiated plea agreement rather than the…
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Join FLexlaw to unlock all legal intelligenceAnthony Tedesco was sentenced on November 15, 1989 to fifteen years in prison followed by ten years' probation on counts one and two to run concurrent…
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SHAHOOD, J.
Pro se appellant, Anthony Tedesco, appeals his revocation of probation and upward departure sentence. We affirm as to all issues raised except one. Appellant argues that his departure sentence violates the double jeopardy provisions of the United States and Florida Constitutions.
We remand this matter for the trial court’s reconsideration of this issue since the trial court, in its May 3, 2001, Order on Defendant’s Motion to Correct Sentence, did not consider the Judgement, Sentence and Order Placing Defendant on Probation During Portion of Sentence which was rendered December 4, 1989, nunc pro tunc, to the date of the original sentence. Rather, the court relied upon the original November 15, 1989 sentence in addressing this issue. While appellant’s original sentence states that he was sentenced on counts one & two to fifteen years in prison followed by ten years’ probation to run concurrent with the other cases, the order rendered nunc pro tunc to the date of the original sentence, states that appellant was • sentenced to fifteen years in prison in count two, followed by a consecutive ten year probation term in count one. This latter sentence is consistent with appellant’s negotiated plea agreement which states: “Count 2-15 years DOC with credit_ days served in jail. Count 1-10 years probation consecutive to prison sentence in Count 2.” We, therefore, reverse appellant’s sentence and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
GROSS and MAY, JJ., concur.
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Tedesco v. State, 893 So. 2d 660 (Fla. 4th DCA 2005)…ntered on August 31, 1999 nunc pro tunc to June 8, 1999, indicates that his forty-year prison sentence is concurrent as to Counts I and II. As the trial judge clarified in a written order pursuant to our instructions on remand in Tedesco v. State, 821 So. 2d 359 (Fla. 4th DCA 2002), the forty-year sentence imposed pursuant to Tedesco’s probation revocation was only as to Count I (the defendant having fully served his sentence on Count II). The state concedes, and we agree, that the scrivener’s error appeari…