Poole v. State

• Decision Date: 25 September 2009
• Docket Number: No. 2D08-2787.,2D08-2787.
• Citation: 17 So.3d 1272
• Parties: Akeen Reshawn POOLE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

17 So.3d 1272

Akeen Reshawn POOLE, Appellant, v.STATE of Florida, Appellee.

No. 2D08-2787.

District Court of Appeal of Florida, Second District.

September 25, 2009.

Appeal from the Circuit Court for Hillsborough County; Emmett Lamar Battles, Judge.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Affirmed without prejudice to any right Mr. Poole may have to file a timely motion for postconviction relief.

FULMER and NORTHCUTT, JJ., Concur.

WALLACE, J., Concurs specially with opinion.

WALLACE, Judge, Specially concurring.

Akeen Reshawn Poole appeals his judgment and sentence for robbery in circuit courtcase number 07-CF-009771.In circuit courtcase number 07-CF-011017, Mr. Poole appeals his judgment and sentence for carrying a concealed firearm.Mr. Poole's appellate counsel filed an Anders¹ brief suggesting the possibility of sentencing errors in both cases.After a careful review of the record, it appears that the circuit court erred when it imposed the sentence for carrying a concealed firearm in case number 07-CF-011017.However, the error has not been preserved.Accordingly, I concur in this court's affirmance without prejudice to Mr. Poole's right to file an appropriate postconviction motion.

On February 26, 2008, Mr. Poole was adjudicated guilty in case number 07-CF-011017 of the third-degree felony of carrying a concealed firearm, a violation of section 790.01(2), Florida Statutes(2006).The date of the alleged offense was May 10, 2007.Mr. Poole was initially sentenced as a youthful offender to three years' imprisonment followed by two years' probation.On April 18, 2008, Mr. Poole filed a motion to modify or reduce sentence under Florida Rule of Criminal Procedure 3.800(c).The circuit court denied the motion but resentenced Mr. Poole on May 1, 2008, to two years' imprisonment followed by four years' probation.

The sentence of two years' imprisonment followed by four years' probation in case number 07-CF-011017 constitutes sentencing error for two reasons.First, the circuit court increased Mr. Poole's sentence in contravention of double jeopardy principles after the sentence had been imposed and he had begun to serve the sentence.SeeNickerson v. State,927 So.2d 114, 117-18(Fla. 2d DCA2006)(finding that the trial court violated double jeopardy principles when it imposed a longer sentence at a resentencing hearing);Busbee v. State,845 So.2d 1020, 1020(Fla. 1st DCA2003)(reversingthe defendant's sentence in an Anders appeal because the circuit court increased the original sentence a day after it was imposed).Second, Mr. Poole's six-year sentence exceeded the statutory maximum of five years for third-degree felonies.SeeMcKee v. State,844 So.2d 816, 816-17(Fla. 5th DCA2003)(holding that six-year sentences as a youthful offender were illegal because they exceeded the statutory maximum for third-degree felonies).

However, this court could not address these sentencing errors on direct appeal because Mr. Poole did not preserve them for appellate review by objecting during the hearing on the motion to modify or reduce sentence or by filing a motion in accordance with Florida Rule of Criminal Procedure 3.800(b).Fla. R.App. P. 9.140(e);seeJackson v. State,983 So.2d 562, 568-70(Fla.2008)(explaining that...