STATE OF FLORIDA

v.

TIMOTHY DONALD JANES

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

STATE OF FLORIDA,

Appellant,

v.

Case No. 5D21-1834 LT Case No. 48-2006-CF-012768-O

TIMOTHY DONALD JANES,

Appellee.

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Opinion filed November 21, 2022 Appeal from the Circuit Court for Orange County, Mark S. Blechman, Judge. Ashley Moody, Attorney General, Tallahassee, and Richard Alexander Pallas, Jr., Assistant Attorney General, Daytona Beach, for Appellant. William R. Ponall, of Ponall Law, Maitland, for Appellee. EDWARDS, J.

As part of a de novo resentencing to correct previously imposed illegal sentences on certain counts, may the postconviction court restructure legal sentences on other counts? Appellant, the State, argues that the answer is no, and we agree. The authority to resentence de novo, once the sixty-day time frame set forth in Florida Rule of Criminal Procedure 3.800(c) has expired, applies only to those counts on which illegal sentences were previously imposed and does not extend to permit the postconviction court to alter any legal sentence on any other count.

Background

Following a jury trial, Appellee, Timothy Donald Janes, was found guilty of ten counts of child sex crimes. In 2007, the trial judge made an oral pronouncement of sentences totaling sixty years in prison, and Appellee was also designated as a sexual predator. His initial plenary appeal was affirmed. Janes v. State, 985 So. 2d 548 (Fla. 5th DCA 2008). In 2018, Appellee, through counsel, filed a rule 3.800(a) motion in which he challenged the legality of the sentences imposed on Counts 6, 10, and 11 as exceeding the applicable statutory maximum lengths. Additionally, Appellee argued that the eighty-year written sentence inappropriately differed from the sixty-year sentence orally pronounced originally by the trial court. Further, Appellee asserted in his rule 3.800(a) motion that his sentence on Count 7 was illegal because the trial court had failed to orally pronounce any sentence as to that count. Although Appellee raised other arguments, he did not challenge the legality of the length or nature of the prison sentences imposed on Counts², 3, 4, 5, and 9, each of which were concurrent with each other and consecutive to Count 6. Nor did the State at any point concede to any illegal sentencing as to those just-listed counts. In 2019, the first postconviction court granted Appellee’s motion in part “to the extent that [Appellee] will be resentenced to clarify the discrepancy between the oral pronouncement and the written sentence, and the sentence length of counts 6 and 11.” All other claims were denied in the written order.¹ Resentencing did not actually occur until 2021 before a second postconviction judge. Commendably, the State conceded that Appellee should be resentenced so that the oral pronouncement controlled and no sentences exceeded statutory maximums. Additionally, despite the 2019 resentencing order not directing relief as to Counts 8 and 10, the State conceded that Appellee should also be resentenced on those counts as they exceeded the relevant statutory maximums and were thus illegal sentences. In summary, the State agreed that Appellee was entitled to resentencing

Analysis

The legality of a criminal sentence is reviewed de novo. Abraham v. State, 339 So. 3d 370, 371 (Fla. 4th DCA 2022) (citing Cruz v. State, 189 So. 3d 822, 832 (Fla. 4th DCA 2015)). The State agrees that the postconviction court could resentence in a truly de novo fashion so as to restructure any illegal sentence that had previously been imposed on any count, within the parameters provided by law. On the other hand, the State argues that the postconviction court committed reversible error because it lacked authority to restructure any of the legal sentences originally imposed on Counts², 3, 4, 5, and 9. We agree. While an illegal sentence can be corrected at any time, a court loses jurisdiction to modify a legal sentence after sixty days have passed since its

Conclusion

The postconviction court lacked authority to restructure the original, legal sentences imposed on Counts², 3, 4, 5, and 9. Accordingly, we reverse and remand for the postconviction court to reinstate the original sentences for those counts in all respects.

REVERSED and REMANDED WITH INSTRUCTIONS.

WALLIS and NARDELLA, JJ., concur.