BRITT NORTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Norton was resentenced after reversal of his original concurrent sentences for armed burglary and aggravated battery. The court held that a trial court may impose consecutive sentences on remand even if the original sentences were concurrent, provided it does not violate the Pearce prohibition against vindictive resentencing.
A trial court may impose consecutive sentences on remand after reversal of concurrent sentences, provided the resentencing does not violate the Pearce prohibition against vindictive resentencing. The per se rule prohibiting consecutive sentences after concurrent sentences has been superseded by North Carolina v. Pearce.
[1] A trial court may impose consecutive sentences on remand after reversal of concurrent sentences, provided the resentencing does not violate the prohibition against vindic…
[2] Prior judicial decisions holding that concurrent sentences on remand must remain concurrent, regardless of length, are no longer controlling law.
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“Under. Pearce there is no per se prohibition against consecutive sentences being imposed after reversal of concurrent sentences, so long as the Pearce prohibition against vindictive resentencing is not violated.”
Establishes the core holding that consecutive sentences are permissible on remand if not vindictive.
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Join FLexlaw to unlock all legal intelligenceNorton was convicted of armed burglary and aggravated battery and sentenced to two fifteen-year departure sentences with ten years probation each, to …
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KLEIN, J.
The issue posed by this appeal is whether, after reversal of concurrent sentences, a trial court can impose consecutive sentences. Although some decisions from this court hold that the trial court cannot, regardless of the length of the resentences, those decisions are based on federal law which predated North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 28 L.Ed.2d 656 (1969). Under. Pearce there is no per se prohibition against consecutive sentences being imposed after reversal of concurrent sentences, so long as the Pearce prohibition against vindictive resentencing is not violated.
Appellant was convicted of armed burglary and aggravated battery, and sentenced to two fifteen year departure sentences, each followed by ten years probation, to run concurrently. We reversed because there were no findings which would support the departure sentences and remanded for resentencing within the guidelines. Norton v. State, 682 So. 2d 1232 (Fla. 4th DCA 1996). At the resentencing hearing, the trial court gave appellant 8 years in prison for the armed burglary and 10 years probation for the aggravated battery, with the sentences to run consecutively.
Appellant relies on McMullen v. State, 631 So. 2d 1126 (Fla. 4th DCA 1994), in which we applied a principle previously adopted by this court to the effect that where the original sentences are concurrent, the sentences on remand must also be concurrent, regardless of the length. We adopted that rule in Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979), relying on federal cases which supported that view.1
Several years after Pahud, the third district decided Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982), in which Judge Pearson, in an in-depth opinion, demonstrated that the federal decisions we relied on in Pahud were not viable in light of Pearce, and recognized conflict with Pa-hud. Then, in Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984), the Florida Supreme Court, without recognizing the conflict between Pahud and Herring, applied Herring and concluded that a trial court can change from concurrent to consecutive sentences on remand, so long as it does not violate Pearce. Herring was also cited with approval in Blackshear v. State, 531 So. 2d 956 (Fla.1988).
It is thus clear that, although Pahud has not been expressly overruled, it is no longer good law.2 In the present case, appellant’s sentences on remand, although consecutive, are more lenient than the original sentences and clearly do not violate Pearce. We therefore affirm.
DELL and GROSS, JJ., concur. . Duggins v. United States, 240 F. 2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F. 2d 26 (9th Cir. 1964).
. Neither are McMullen, Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990), or Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992), all of which relied on Pahud.
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Buchanan v. State, 781 So. 2d 449 (Fla. 5th DCA 2001)…entry of the corrected sentences was error. We disagree. A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive. See Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999); Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982). Here, the record does not suggest, nor does Buchanan raise, a claim of vindictiveness. Accordingly, we affirm. Judgments and Sentences AFFIRMED. COBB and PETERSON, JJ., conc…
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Sands v. State, 899 So. 2d 1208 (Fla. 5th DCA 2005)…court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.” Buchanan v. State, 781 So. 2d 449, 450 (Fla. 5th DCA 2001) (citing Norton v. State, 731 So. 2d 762 (Fla. 4th DCA 1999); Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)). In Tilley v. State, 871 So. 2d 294 (Fla. 5th DCA 2004), a case analogous to the instant case, the defendant filed a motion for postconviction relief under rule 3.850, which t…
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Everett v. State, 824 So. 2d 211 (Fla. 1st DCA 2002)…mand, so long as it does not violate Pearce. Herring was also cited with approval in Blackshear v. State, 531 So. 2d 956 (Fla.1988). It is thus clear that, although Pahud has not been expressly overruled, it is no longer good law. Norton v. State, 731 So. 2d 762, 763 (Fla. 4th DCA 1999). Accordingly, we vacate Everett’s sentence and remand for resentencing consistent with Pearce and Fasenmyer. We find Everett’s other claims on appeal to be without merit. DAVIS, VAN NORTWICK and POLSTON, JJ., CONCUR.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Duggins v. United States, 240 F.2d 479 (6th Cir. 1957)
- Blackshear v. State, 531 So. 2d 956 (Fla. 1988)
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964)
- Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)
- Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979)
- Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990)
- Bruno v. State, 596 So. 2d 1205 (Fla. 4th DCA 1992)
- Galloway v. Law Offs. of Merkle, Bright & Sullivan, P.A., 596 So. 2d 1205 (Fla. 4th DCA 1992)