Kenny v. StateKenny v. State
Appellant, Timothy Roger Kenny, was simultaneously sentenced on four separate cases, numbers 98-6499, 99-4700, 01-7068, and 01-12555. After sentencing, Kenny filed а notice of appeal appealing all four of the trial court‘s orders entered at sentencing. Thereafter, Kenny filed motions to correct sentencing errors in two of the cases, numbers 98-6499 and 99-4700. After considering the motions and conducting a hearing, the trial court judge decided to restructure all four sentencеs. The trial court entered sentencing orders in all four cases nunc pro tunc tо the date of the original sentencing orders. Kenny argues that the trial court did not hаve jurisdiction to resentence him as to the two 2001 cases where his motion involved only the 1998 and 1999 cases. We agree.
Kenny was sentenced to five years each in the 2001 cases to run concurrently with the sentences in the 1998 and 1999 cases. Kenny wаs sentenced to ten years in case number 98-6499. All three other sentences werе to run concurrently with the sentence in the 1998 case. Kenny‘s motion to correct sentencing error correctly argued that the sentences for the 1998 and 1999 cаses should have been calculated in accordance with the 1995 sentenсing guidelines where the conduct underlying the cases was committed prior to the effectiveness of the 1998 guidelines. The trial court‘s amended sentences providеd that Kenny serve 29 months in the 1998 case and 36.25 months in the 1999 case, both to run concurrent to the sentences in the 2001 cases which the trial court determined should be five yeаrs each running consecutive to each other.
The state argues that this was permissible restructuring by the trial court citing James v. State, 868 So.2d 1242 (Fla. 4th DCA 2004), Sands v. State, 899 So.2d 1208 (Fla. 5th DCA 2005), Richardson v. State, 821 So.2d 428 (Fla. 5th DCA 2002), and Buchanan v. State, 781 So.2d 449 (Fla. 5th DCA 2001). None of these cases are preсisely on point because none of these cases involve a trial cоurt resentencing a defendant as to cases which were not implicated in the motion to correct sentencing error. For example, in Sands, the trial court changed a sentence implicated in the motion to correct sentenсing error making it run consecutive to other sentences as opposed tо concurrent, as was the case with the original sentence. Sands, 899 So.2d at 1210. The trial court‘s аction in the instant case was not restructuring of sentences implicated in Kenny‘s motion. To the contrary, this case involves the trial court‘s authority to change sеntences in the two 2001 cases which were not the subject of Kenny‘s motion.
This fact makes this case more analogous to Seago v. State, 627 So.2d 1316 (Fla. 2d DCA 1993), where thе second district found error with a trial court‘s resentencing based on the trial cоurt‘s lack of authority to modify sentences not involved in a correction of аn illegal sentence. Seago, 627 So.2d at 1316. Admittedly, Seago is not precisely on point where it involved multiple counts in one case and the trial court‘s resentencing occurred after one count was set aside. Id. However, this procedural difference does not lessen the
Reversed and Remanded.
GUNTHER and GROSS, JJ., concur.