Cerkella v. State

687 So. 2d 367 | Fla. Dist. Ct. App. | 1997

Concurrence Opinion

COPE, Judge

(concurring).

In my view the trial court at resentencing may consider running the count being resen-tenced (count I) consecutive to the existing 16-year sentence on count II in order to come as close as possible to the original sentencing intent. See United States v. Gruenberg, 53 F.3d 214, 215 (8th Cir.1995); United States v. Jackson, 923 F.2d 1494, 1498-99 & n. 5 (11th Cir.1991). Our vacating of the sentence on count I necessarily reopens all aspects of the count I sentencing order, including the question of whether count I should run consecutive to, instead of concurrent with, count II. See United States v. Jackson, 923 F.2d at 1498-99. Even with consecutive sentencing, the aggregate term would be 55 years, well short of the original 75 years (count I) with 15 years concurrent (count II).^*

* In view of Fasenmyer v. State, 457 So.2d 1361 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985), it would be inadvisable to disturb the sentencing order on count II.

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Lead Opinion

PER CURIAM.

Olimpio Cerkella appeals the trial court’s denial of his motion filed pursuant to Rule 3.800, Florida Rules of Criminal Procedure, seeking to correct an illegal sentence. Upon the State’s proper confession of error, we remand with instructions to the trial court that Cerkella be resentenced to a term not to exceed forty years.

Reversed and remanded.