127 So. 3d 828
Fla. Dist. Ct. App.
2013

Lead Opinion

SLEET, Judge.

Jimmy Cаzares appeals his judgment and sentences for three counts of sexual activity with a child by a person in familial сustodial authority following revocation of probation. We affirm the revocation of probation without further сomment, but because the trial court erred in resentenc-ing Mr. Cazares after he had already begun serving his sentencеs on those charges, we reverse his amended sentences and remand for reinstatement of the original sentences.

In 1995, Mr. Cazares entered a plea of no contest to three counts of attempted sexual battery on a child less than twelve years old and three counts of sexual activity with a child by a person in familial custodial authority. The trial court imposed a sentence of ten years’ prison on the attempted-sexual-battery charges with a consecutive sentence of fifteen years’ prison followed by ten years’ probation on the sexual-activity charges. In 2010, the State filed an affidavit of violation of probation alleging that Mr. Cazares violated his probation by fаiling to provide truthful information to his probation officer. Following a revocation of probation hearing, the trial court found that Mr. Cazares violated the terms of his probation and sentenced him to thirty years’ prison on the attempted-sexual-battery charges and five years’ prison on the sexual-activity charges, to run consecutively.

What transрired thereafter is a procedural quagmire, but for the purposes of this appeal it is sufficient to say that Mr. Cazаres then filed a motion under Florida Rule of Criminal Procedure 3.800(b)(1) to correct an illegal sentence, arguing that the sentences imposed on the attempted-sexual-battery charges should be vacated because Mr. Cazares was not placed on probation with respect to those charges. The trial court granted the motion and vаcated the sentences ‍‌‌‌‌​​​​​‌​​‌‌​​‌​​​​‌‌​‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​​​‌​‌​‍on the attempted-sexual-battery charges, but on motion by the State, the trial court increased the sentences on the sexual-activity charges to reflect the trial court’s intended sentence of thirty years’ prison. In this appeal, Mr. Cazares argues that the trial court erred in resentencing him on the sexual-activity charges when he had already begun serving his sentences on those charges and did not challenge those sentences in his rule 3.800 motion.

“Once a sentence has been imposed and the person begins to serve the sentence, that sеntence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). Moreover, a motiоn to correct sentence directed at specified counts does not permit a trial *830court to modify legal sentences imposed ‍‌‌‌‌​​​​​‌​​‌‌​​‌​​​​‌‌​‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​​​‌​‌​‍in other counts in the same case. See Delemos v. State, 969 So.2d 544, 549 (Fla. 2d DCA 2007).

Here, it is apparent that the trial court made а mistake in sentencing Mr. Cazares on the attempted-sexual-battery chai’ges but intended that Mr. Cazares serve an overall sentence of thirty years. Nevertheless, under current Florida law we must hold that the trial court erred in increasing Mr. Cazаres’ sentences on the sexual-activity charges because Mr. Ca-zares had already begun to serve his sentenсes on those charges. See Ashley, 850 So.2d at 1265; see also Taylor v. Dugger, 527 So.2d 891, 892 (Fla. 1st DCA 1988) (“[0]nce the first sentence was vacated, the consecutive sentence must be calculated from the date it was imposed, not from the date the first sentence was vacated.” (citing Falagan v. Wainwright, 195 So.2d 562 (Fla.1967); Helton v. Mayo, 153 Fla. 616, 15 So.2d 416 (1943))). Furthermore, Mr. Cаzares’ motion to correct illegal sentence was directed solely at the sentences imposed on thе attempted-sexual-battery charges, precluding the trial court from increasing his sentences on the unchallengеd sexual-activity ‍‌‌‌‌​​​​​‌​​‌‌​​‌​​​​‌‌​‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​​​‌​‌​‍charges. Accordingly, we conclude that the trial court erred in increasing Mr. Cazares’ sentencеs on the sexual-activity charges, and we reverse and remand for reinstatement of the original sentences imposed following revocation of probation.1

Affirmed in part; reversed in part; remanded.

KELLY, J., Concurs. ALTENBERND, J., Concurs with opinion.

Notes

. Our decision renders Mr. Cazares' remaining argument that he was entitled to bе present for his resentencing moot.



Concurrence Opinion

ALTENBERND, Judge,

Concurring.

I agree that the outcome we reach in this case appears tо be compelled by the holding in Ashley v. State, 850 So.2d 1265 (Fla.2003). I do not question the wisdom of examining criminal judgments and sentences individually in most contexts. Hоwever, for purposes of constitutional ‍‌‌‌‌​​​​​‌​​‌‌​​‌​​​​‌‌​‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​​​‌​‌​‍double jeopardy analysis, I continue to believe that the “package approach” utilized by federal courts and some other states is a better approach. See e.g., United States v. Watkins, 147 F.3d 1294 (11th Cir.1998). Mr. Cazаres apparently will be entitled to immediate release even though a thirty-year term of imprisonment was an entirely lawful sentence for each of the three judgments that actually were eligible for sentencing at the sentencing hеaring on his violation of probation.

It is noteworthy that the sentences he received for attempted capital sexual battery at this sentencing hearing were more than illegal; they were void from inception because the original sentences had already been fully served. Under a package approach to sentencing, the void sentences entered on the three judgments for which he had already fully served his sentences would not prevent аn amendment to the sentences on his three active judgments.

The Double Jeopardy Clause of the U.S. Constitution2 should not prevent a trial court from readjusting the sentences imposed at a single sentencing hearing to impose lawful sentences consistent with the overall aggregatе sentencing package intended ‍‌‌‌‌​​​​​‌​​‌‌​​‌​​​​‌‌​‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​​​‌​‌​‍by the pronouncement at that sentencing hearing. I am unconvinced that the Constitution compels the immediate release of a prisoner merely because the participants at a sentencing hearing *831were confused about the judgments eligible for sentencing at that hearing.

. U.S. Const. Amend. V.
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