TRAVIS PENNINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harley Pennington appeals his resentencing on remand from a prior direct appeal of his DUI manslaughter and leaving-the-scene-of-accident-with-death convictions. The court reverses the trial court's increase in the leaving-the-scene sentence on remand, holding that trial courts lack authority to modify sentences on convictions that were affirmed and not disturbed on appeal.
Trial courts are not authorized to modify sentences on remand after direct appeal for convictions that were not disturbed by the appellate court. The concept of aggregate sentencing on interdependent offenses does not justify such modification.
[1] A trial court may not modify a sentence on a conviction that was affirmed on direct appeal, even if the modification is intended to effectuate the original sentencing pla…
[2] A trial court lacks the authority to modify a sentence on remand after a direct appeal if the conviction and sentence for that offense were not disturbed by the appellate…
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Join FLexlaw to unlock all legal intelligence“trial courts are not authorized, on remand after direct appeal, to modify sentences on convictions not disturbed by the appellate court”
Establishes the core holding that trial courts lack power to modify affirmed sentences on remand
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Join FLexlaw to unlock all legal intelligencePennington was convicted by jury of DUI manslaughter (as a lesser-included offense) and leaving the scene of an accident with death. He was originally…
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Harley Pennington (defendant) appeals his sentence, imposed by the trial court on his conviction for leaving the scene of an accident with death. Determining that the trial court erred in increasing the defendant’s sentence after it had been earlier affirmed on direct appeal, we reverse.
This appeal is the second direct appeal filed by the defendant in connection with *648his prosecution for driving under the influence (DUI) manslaughter.
The defendant’s initial charges included committing the offenses of DUI manslaughter with the failure to render aid and leaving the scene of an accident with death. The matter proceeded to trial before a jury. The jury returned a guilty verdict on the lesser-included offense of DUI manslaughter, and found the defendant guilty on the leaving the scene of an accident with death charge. The court entered judgment on the convictions, and then sentenced the defendant to a term of 146 months’ incarceration followed by 80 months’ probation on the DUI manslaughter conviction and to a consecutive term of fifteen years’ probation on the leaving the scene of an accident with death conviction.
The defendant appealed his convictions claiming, among other things, that the trial court erred in denying his motion for entry of a judgment of acquittal on the DUI manslaughter charge. Our court issued an opinion holding that, while there “was sufficient evidence that [the defendant] was intoxicated and drove his vehicle ... the proper conviction is for driving under the influence of alcohol.” Pennington v. State, 100 So.3d 198, 200 (Fla. 5th DCA 2012). As such, our court reversed the defendant’s DUI manslaughter conviction and remanded the case to the trial court to enter an amended judgment and sentence. The court further held that the defendant’s “conviction and sentence for leaving the scene of an accident with death is affirmed.” Id.
On remand, the trial court sentenced the defendant to a term of nine months’ imprisonment on the DUI conviction. With respect to the leaving the scene of the accident with death conviction, the trial court re-sentenced the defendant to a term of 12 years’ imprisonment, concurrent with the DUI sentence, followed by a period of 15 years of supervised probation.
The defendant argues that the trial court erred by increasing the sentence on his leaving the scene of an accident with death conviction from fifteen years’ probation to twelve years’ imprisonment followed by fifteen years’ probation because, among other reasons, his conviction and sentence on that charge were affirmed by this court on direct appeal. We agree.
In Fasenmyer v. State, 457 So.2d 1361 (Fla.1984), our Supreme Court held that trial courts are not authorized, on remand after direct appeal, to modify sentences on convictions not disturbed by the appellate court.
We conclude that 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.
Id. at 1365-1366. See also Carlin v. State, 648 So.2d 261 (Fla. 5th DCA 1994); Ruffin v. State, 589 So.2d 403 (Fla. 5th DCA 1991); McKinley v. State, 519 So.2d 1154 (Fla. 5th DCA 1988); Kelly v. State, 508 So.2d 788 (Fla. 5th DCA 1987).
Accordingly, the defendant’s sentence on his conviction for leaving the scene of an accident with death is reversed, and this matter is remanded with instructions to re-instate the defendant’s original sentence. In all other respects, we affirm.
AFFIRMED in part; REVERSED in part; REMANDED.
TORPY, C.J., PALMER and ORFINGER, JJ., concur.
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Lakey v. State, 172 So. 3d 989 (Fla. 5th DCA 2015)…due to an error in a jury instruction. The State subsequently entered a nolle prosequi on Count II. Because there were no pending charges at that time, the trial court did not err in denying Lakey’s motion for resen-tencing. See Pennington v. State, 120 So. 3d 647, 648 (Fla. 5th DCA 2013) (“[T]rial courts are not authorized, on remand after direct appeal, to modify sentences on convictions not disturbed by the appellate court.” (citing Fasenmyer v. State, 457 So. 2d 1361, 1365-66 (Fla.1984))). Lakey then fil…
Authorities Cited
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- McKINLEY v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988)
- Dolan Robert Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987)
- Ruffin v. State, 589 So. 2d 403 (Fla. 5th DCA 1991)
- Curtiss W. Carlin v. State, 648 So. 2d 261 (Fla. 5th DCA 1994)