DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN MATTHEWS BAKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D20-2112, 4D20-2239, and 4D20-2240
[September 14, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Sherwood Bauer, Jr., Judge; L.T. Case Nos.
432019CF000643A, 432019CF000833A, and 432019CF000834A.
Carey Haughwout, Public Defender, and Cynthia L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
On appeal, appellant argues that the trial court erred in imposing a
sentence that was illegal under section 921.0024(2), Florida Statutes
(2020). Based on the State’s concession in its brief, we agree and remand
for resentencing. See Rigueiro v. State,
132 So. 3d 853, 854 (Fla. 4th DCA
2013).
Appellant entered an open plea to one count of lewd and lascivious
battery, twenty-two counts of possession of child pornography, and two
counts of child pornography. Appellant’s Criminal Punishment Code
scoresheet totaled 406.8 points and provided that his lowest possible
prison sentence (“LPS”) was calculated to 339.6 months in prison, or 28.3
years. The trial court sentenced appellant to 480 months on all counts to
run concurrently. After appellant filed a 3.800 motion, the trial court
resentenced appellant to 480 months only on the possession charges,
leaving the sentence imposed on the other counts in place.
“Because a motion to correct a sentencing error involves a pure issue
of law, our standard of review is de novo.” Metellus v. State,
310 So. 3d
90, 92 (Fla. 4th DCA 2021) (quoting Brooks v. State,
199 So. 3d 974, 976
(Fla. 4th DCA 2016)).
Section 921.0024(2) provides in part:
The permissible range for sentencing shall be the [LPS] up to
and including the statutory maximum, as defined in s.
775.082, for the primary offense and any additional offenses
before the court for sentencing. . . . If the [LPS] under the code
exceeds the statutory maximum sentence as provided in s.
775.082, the sentence required by the code must be imposed.
If the total sentence points are greater than or equal to 363,
the court may sentence the offender to life imprisonment.
§ 921.0024(2), Fla. Stat. (2020).
The Florida Supreme Court has stated that “if the LPS exceeds the
statutory maximum penalty in section 775.082, the LPS is both the
minimum sentence and the maximum penalty for that offense.” State v.
Gabriel,
314 So. 3d 1243, 1248-49 (Fla. 2021).
Our decision in Rigueiro is on point. Like in Rigueiro, the LPS here did
exceed the statutory maximum on all counts. See
id. Because the total
sentencing points were greater than 363, the sentencing court only had
two options: life sentences or sentences of 28.3 years in prison. See
id.
However, the trial court instead imposed a concurrent sentence of 40 years
on all counts. See
id. At a hearing on appellant’s 3.800 motion, the trial
court again failed to impose the LPS. This resulted in an illegal sentence,
as the State has conceded in its brief. See
id.
On remand, the court must sentence appellant to the calculated LPS of
28.3 years on all counts to be served concurrently, because any other
sentence, including a consecutive sentence, would be greater than
appellant’s original sentence. See Rigueiro,
132 So. 3d at 854; see also
Reguerio v. State,
619 So. 2d 463, 465 (Fla. 4th DCA 1993) (noting that a
defendant’s sentence may not increase at resentencing “unless it is based
on conduct occurring subsequent to the imposition of the first sentence”).
The only exception is if appellant moves for a downward departure on
remand. See Jackson v. State,
64 So. 3d 90, 91 (Fla. 2011) (holding that
“on remand for resentencing a trial court is permitted to impose a
downward departure when the trial court finds a valid basis for departure
as prescribed under the [Criminal Punishment] Code”).
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Appellant also asks to remand for a de novo resentencing hearing before
a different judge; however, this remedy is not appropriate here. See Lacey
v. State,
312 So. 3d 97, 100 (Fla. 4th DCA 2021). The remedy of
resentencing before a different judge is reserved to avoid any perception
“that resentencing may not be conducted in a completely fair and impartial
manner.”
Id. at 101 (quoting Schwartzberg v. State,
215 So. 3d 611, 616
(Fla. 4th DCA 2017)). The record on appeal does not reveal any bias on
the part of the judge that would rise to the level of “judicial vindictiveness.”
See id. at 102, 104 (Artau, J., concurring in part and dissenting in part)
(“[N]othing in this record could reasonably cause us to presume the same
judge would be unable to resentence [appellant] fairly”). Further, the
instructions on remand will cure any potential bias or perception of
impartiality that would necessitate remanding to a different judge. See id.
Reversed and remanded with instructions.
KLINGENSMITH, C.J., GROSS and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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