Sands v. State, 5D03-3082.

• Decision Date: 15 April 2005
• Docket Number: No. 5D03-3082.,5D03-3082.
• Citation: 899 So.2d 1208
• Parties: Randy Allen SANDS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

899 So.2d 1208

Randy Allen SANDS, Appellant, v. STATE of Florida, Appellee.

No. 5D03-3082.

District Court of Appeal of Florida, Fifth District.

April 15, 2005.

James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, C.J.

Randy Allen Sands appeals the sentence that was imposed after the trial court granted his Motion to Correct Illegal Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The issue we must resolve is whether it was permissible, upon resentencing, for the trial court to restructure Sands' sentence by changing the sentence on one count to run consecutive to, rather than concurrent with, the other counts. We believe that it is within a trial court's discretion to restructure a sentence so long as the aggregate sentence remains within the parameters of the plea agreement, does not exceed the maximum sentence that may be lawfully imposed, and is not vindictive. We proceed to determine whether the sentence here meets these criteria.

Based on unlawful contact with two minor females and actions subsequent thereto, Sands was charged in separate cases, resulting in the plea agreement from which his sentences arise. In case number 99-45777, Sands was charged with lewd and lascivious battery (Count I); lewd and lascivious molestation (Count II); lewd and lascivious conduct (Count III); and aggravated assault (Count IV). Later, Sands solicited a fellow inmate, soon to be released, to frighten or intimidate the victims and their families so that they would not testify. Unfortunately for Sands, these actions resulted in charges filed against him in case number 00-41069, which included a count charging solicitation to commit a life felony (arson) and a count charging witness retaliation.

Pursuant to his plea agreement with the State, Sands pled nolo contendere to the two counts mentioned in case number 00-41069 and to all four counts in case number 99-45777. In exchange, the agreement provided that the court would impose a sentence of between 221.4 months (18.45 years) and 295.2 months (24.6 years) in prison followed by ten years of probation. The plea agreement was presented to the trial court, Sands entered his plea, and he was sentenced as follows in case number 99-45777: lewd and lascivious battery, 15 years' incarceration; lewd and lascivious molestation, 24.6 years' incarceration followed by 5 years' probation to be served concurrent with the previous sentence; lewd and lascivious conduct, 10 years' probation concurrent with the previous sentence; and aggravated assault, 5 years' probation consecutive to the probationary sentence imposed for lewd and lascivious molestation. In case number 00-41069, Sands was sentenced as follows: solicitation to commit a felony (arson), 10 years' probation concurrent with the other charges; and witness retaliation, 10 years' probation concurrent with the previous sentence. The total sentence for all of the charges was 24.6 years' incarceration followed by 10 years' probation, which complies with the plea agreement.

On August 21, 2003, Sands filed a Notice of Appeal with this court. On January 29, 2004, Sands filed a Motion to Correct Sentence and Schedule Hearing, alleging that the lewd and lascivious molestation charge found in Count II in case number 99-45777 was a second-degree felony, not a first-degree felony.¹ As a result, Sands contended, the maximum allowable sentence for that charge would have been 15 years. On February 4, 2003, the trial court granted the motion and scheduled a hearing for February 16, 2004.

During the February 16, 2004, hearing, the State agreed that Count II was a second-degree felony with a maximum sentence of 15 years' incarceration. The trial court explained how it was going to restructure the sentence:

As to count two, lewd or lascivious molestation, the court will reaffirm the prior adjudication of guilt, and I'm going to sentence you to 9 point 6 years in the Department of Corrections and that will run consecutive to count one; and additionally, there will be 5 point 5 years of probation ... [a]ctually 5 point 4 years of probation to follow.

* * *

Again I want to repeat that the 9 point 6 years of DOC on count two, which would be consecutive to fifteen years of DOC that is in count one. I believe that comes up with a total of 24 point 6 years.

Counsel for Sands argued that the request for relief was limited to the illegal sentence imposed for the lewd and lascivious molestation charge in Count II and that by making that sentence consecutive to the other sentence imposed for lewd and lascivious battery charged in Count I and revising the probation period, the court was restructuring a part of the sentence that was not before the court. After further discussion, the court stated that "[t]he parties bargained for a cap of 24 point 6 months [sic], a cap. I was able to operate within that framework. . . ."

Following the hearing, the trial court issued a sentencing order nunc pro tunc to the original order issued August 18, 2003. The new order provided for the following sentence in case number 99-45777: lewd and lascivious battery, 15 years' incarceration; lewd and lascivious molestation, 9.6 years' incarceration followed by 5.4 years' probation consecutive to the previous sentence; lewd and lascivious conduct, 10 years' probation concurrent with the previous sentence; and aggravated assault, 5 years' probation consecutive to the probationary sentence imposed for lewd and lascivious molestation. Hence, the sentence after resentencing equals 24.6 years' incarceration followed by 10.4 years' probation.

Sands argues that his sentence should be vacated and remanded for resentencing for two reasons: (1) the court should not have increased the probation period to 10.4 years, and (2) the sentences for the first two counts in case number...