FABIAN CHAIRES, A/K/A FABIAN BANDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in resentencing appellant on count II after successful postconviction relief on count I, violating the prohibition established in Fasenmyer v. State.
A trial court may not resentence a defendant on a count where no postconviction relief was sought when resentencing another count following successful postconviction relief.
[1] When a defendant successfully obtains postconviction relief as to sentence on one count, a trial court may not resentence the defendant on a different count on its own mo…
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Join FLexlaw to unlock all legal intelligenceAppellant Chaires sought postconviction relief as to his sentence on count I and was successful. The trial court then resentenced him on count II on i…
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PER CURIAM.
In this direct criminal appeal, appellant claims that the trial court erred in resentencing him on count II on its own motion after he successfully sought postconviction relief as to his sentence on count I. The state correctly 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 remand with directions that the trial court impose the original sentence of 30-years’ probation, consecutive to the prison sentence imposed as to count I.
Appellant also claims that the written judgment and sentence contains a scrivener’s error in that it imposes habitual felony offender sentences as to all four counts while the trial court’s oral pronouncement imposed an habitual felony offender sentence as to only count II. Although this claim is not preserved, we trust that the trial court will correct this scrivener’s error on remand.
REVERSED and REMANDED for re-sentencing.
WEBSTER, VAN NORTWICK and LEWIS, JJ., concur.
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Cited By
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Rollins v. Premier Motorcars Inc (N.D. Fla. 2025)…gies and assertion that she “will avoid reliance on Al for legal authorities unless independently verified," ECF No. 25 at 2, her proposed second amended complaint, ECF No. 27-1, again includes a nonexistent case. Plaintiff cites P.G. v. State Farm, 909 So. 2d 528, 532 (Fla. 1st DCA 2005) to support her allegation that certain acts constitute deceptive practices under Florida law. This reporter citation, however, is for a different case-Chaires v. State, 909 So. 2d 528 (Fla. 1st DCA 2005)—which 2 ---PAGE 2--…1 / 2
Authorities Cited
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Antwuan Lopez Gordon v. State, 635 So. 2d 1017 (Fla. 1st DCA 1994)
- Cochran v. State, 899 So. 2d 490 (Fla. 2d DCA 2005)
- Burnett v. State, 890 So. 2d 335 (Fla. 2d DCA 2004)
- James v. State, 784 So. 2d 452 (Fla. 3d DCA 2000)
- DE LA Cosa v. State, 784 So. 2d 452 (Fla. 3d DCA 2000)