JON BURNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jon Burnett appealed a trial court order that resentenced him to fifteen years in prison plus fifteen years sex offender probation for two counts of lewd or lascivious conduct. The appellate court reversed because the trial court lacked jurisdiction to increase sentences on convictions that were affirmed on appeal when other convictions were reversed.
The trial court lacked jurisdiction to increase the sentences. When an appellate court affirms convictions and remands for resentencing without expressly indicating intent to reverse, modify, or vacate the sentence, the trial court's authority is limited to bringing the judgment into conformity with the appellate decision, not to impose harsher sentences.
[1] A trial court lacks jurisdiction to impose greater sentences on convictions that were affirmed on appeal and remanded for resentencing.
[2] A direction to resentence after appellate vacation of other convictions allows the trial court to conform the judgment and sentence to the appellate decision, not to incr…
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“the concept of aggregate sentencing on interdependent offenses as it relates to a 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.”
Establishes the core legal principle that trial courts cannot increase sentences on affirmed convictions based on aggregate sentencing plans when other convictions are reversed.
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Join FLexlaw to unlock all legal intelligenceBurnett was originally convicted of two counts of lewd or lascivious conduct and 136 counts of possession of child pornography. The trial court impose…
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STRINGER, Judge.
Jon Burnett seeks review of the trial court’s order resentencing him to fifteen years in prison followed by fifteen years’ sex offender probation for two counts of lewd or lascivious conduct. Because the trial court was without jurisdiction to increase the sentences for convictions that were affirmed on appeal, we reverse.
Burnett was originally convicted of two counts of lewd or lascivious conduct and 136 counts of possession of child pornography. The trial court imposed concurrent sentences of fifteen years in prison on the lewd or lascivious conduct counts followed by a total of twenty years’ probation on the possession of child pornography counts.1 On appeal, this court reversed the convictions for possession of child pornography, affirmed the convictions for lewd or lascivious conduct, and remanded for “resentencing.” See Burnett v. State, 848 So. 2d 1170, 1176 (Fla. 2d DCA 2003). On remand, the trial court resentenced Burnett to two concurrent terms of fifteen years in prison followed by fifteen years’ sex offender probation. The court expressed its intention to achieve its original sentencing plan of a period of incarceration followed by a period of probation, which was designed to afford Burnett the opportunity to obtain sex offender counseling after his incarceration. These sentences were significantly greater than the concurrent fifteen-year sentences original ly imposed for the two counts of lewd or lascivious conduct.2
On appeal from resentencing, Burnett argues that the trial court lacked jurisdiction to impose greater sentences on the lewd or lascivious conduct charges. The State argues that the court should be permitted to impose the sentences in order to achieve its original sentencing plan based on the aggregate of Burnett’s convictions. However, “the concept of aggregate sentencing on interdependent offenses as it relates to a 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.” Fasenmyer v. State, 457 So. 2d 1361, 1366 (Fla.1984); see also Martinez-Yanez v. State, 779 So. 2d 588 (Fla. 2d DCA2001).
On appeal of Burnett’s original judgment and sentences, this court affirmed Burnett’s convictions for lewd or lascivious conduct and remanded for “re-sentencing.” Burnett, 848 So. 2d at 1176. As we have previously stated, a direction to the trial court to “resentence” the defendant for convictions otherwise affirmed on remand from a decision vacating other convictions is for the purpose of “allow[ing] the trial court to bring the judgment and sentence into conformity with this court’s decision.” Martinez-Yanez, 779 So. 2d at 589. When this court does not expressly indicate its intention to reverse, modify, or vacate a sentence, the trial court is without authority to impose a harsher sentence on remand. Id. at 589-90.
The trial court in this case thus exceeded its jurisdiction by increasing the sentences for Burnett’s lewd or lascivious conduct convictions. We therefore reverse and remand for the imposition of sentences that do not exceed the original concurrent sentences of fifteen years in prison.
Reversed and remanded.
FULMER and NORTHCUTT, JJ., Concur. . The court sentenced Burnett to four consecutive terms of five years' probation on counts 1-34, 35-68, 69-102, and 103-136.
. These sentences are also illegal because they exceed the statutory maximum of fifteen years. See §§ 775.082(3)(c), 800.04(6)(b), Fla. Stat. (1999). However, our decision in this case renders this issue moot.
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Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)…o a 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 1366; see also Burnett v. State, 890 So. 2d 335 (Fla. 2d DCA 2004); Seago v. State, 627 So. 2d 1316 (Fla. 2d DCA 1993); Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994).7 This analysis has also been applied in the context of a defendant’s motion to correct sentence pursuant to rule 3.800(b)(…
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Kenny v. State, 916 So. 2d 38 (Fla. 4th DCA 2005)…of Seago’s guidance as to a trial court’s authority to resentence a defendant. This point is further bolstered by a line of cases involving resentencing defendants after appeals. See Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984); Burnett v. State, 890 So. 2d 335 (Fla. 2d DCA 2004); De La Cosa v. State, 784 So. 2d 452 (Fla. 3d DCA 2000): Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994).. Fasenmyer, which the other cases cited followed, concluded that aggregate sentencing as it relates to a trial judge’s…
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Chaires v. State, 909 So. 2d 528 (Fla. 1st DCA 2005)…concedes that appellant preserved this claim by objection below and that resentencing on count II was prohibited by Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984). Accord Cochran v. State, 899 So. 2d 490, 492-93 (Fla. 2d DCA 2005); Burnett v. State, 890 So. 2d 335, 337 (Fla. 2d DCA 2004); De La Cosa v. State, 784 So. 2d 452, 454-55 (Fla. 3d DCA 2000); Gordon v. State, 635 So. 2d 1017, 1018 (Fla. 1st DCA 1994). Therefore, we vacate the life sentence as an habitual felony offender imposed as to count II and rem…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Burnett v. State, 848 So. 2d 1170 (Fla. 2d DCA 2003)
- Martinez-Yanez v. State, 779 So. 2d 588 (Fla. 2d DCA 2001)