425 So. 2d 151 | Fla. Dist. Ct. App. | 1983
Appellant was convicted of breaking and entering while armed, grand theft, and us
In Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972), this court indicated that
Where two separate judgments or sentences are imposed together, the legality of each must be determined separately .... It is further established that a trial court is generally without power to set aside a criminal judgment after it has been partly satisfied .... There are, of course, various exceptions to this rule
Accord, Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). Brown was subsequently distinguished in Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982), where the court ruled that if illegal concurrent sentences are challenged, on remand the court may impose consecutive sentences.
When the defendants successfully appealed their conviction . .. and obtained reversals, the court’s sentencing plan based on the aggregate conviction . .. was thwarted. In such a case, where the sentences were interdependent, we believe an appellate court, vacating one of those sentences, can vacate the other sentence even if its imposition is not specifically raised on appeal.
Chandler v. U.S., 468 F.2d 834 (5th CCA 1972), takes a contrary view. However, we hereby adopt Busic as the better-reasoned opinion; as Busic indicates, the Chandler rule “would allow the guilty to escape punishment through a legal accident,” whereas the Busic approach merely allows the trial court to effectuate its original sentencing intention in a legal manner.
Appellant’s other arguments are without merit. Accordingly, we affirm the order appealed.
. Herring also suggests that Pahud v. State has been overruled sub silentio by Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).
. The offenses all occurred during a single criminal episode and the sentences imposed were clearly interdependent.
.As Busic indicates, considerations of double jeopardy, as elucidated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), would preclude the imposition of new sentences with a cumulative effect which is more severe than the cumulative effect of the sentences previously imposed.