Third District Court of Appeal
State of Florida
Opinion filed April 5, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1954
Lower Tribunal No. F15-23351
________________
Andres Duquesne,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Laura Anne Stuzin, Judge.
Andres Duquesne, in proper person.
Ashley Moody, Attorney General, and Richard L. Polin, Assistant
Attorney General, for appellee.
Before HENDON, GORDO and LOBREE, JJ.
PER CURIAM.
Andres Duquesne appeals from the summary denial of a motion to
correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a).
On the basis of the summary record before us, we reverse and remand for
further proceedings.
In 2016, pursuant to a guilty plea, Duquesne was adjudicated guilty for
two third-degree felonies – burglary of an unoccupied conveyance and grand
theft. At that time, he was sentenced to jail for 180 days, followed by two
years of probation. These initial sentences were concurrent, and the
sentencing order did not include any form of habitual offender designation,
reclassification, or other enhancement.
After Duquesne was found to have violated probation in 2017, he was
resentenced to a term of ten years with all credit for time served for counts
one and two. Again, the written sentencing order did not include any habitual
offender designation of the defendant, nor did it include any other form of
enhancement or reclassification. The sentencing order further provided that
the two ten-year sentences were concurrent. 1
In May 2022, Duquesne moved to correct his illegal sentence arguing
that the trial court, when resentencing him in 2017, erred by imposing a
1
On appeal, we found violations of Duquesne’s probation were substantial
(failing to report, absconding from probation, and committing a theft while on
probation), but remanded for the trial court to modify the grounds found in
the revocation order. See Duquesne v. State,
242 So. 3d 1183, 1187 (Fla.
3d DCA 2018).
2
habitual felony offender (HFO) sentence, when no such sentence had been
imposed as a part of the original sentencing, and where he did not receive
notice of intent to impose a habitual offender sentence. The State responded
and asserted that Duquesne’s claim had no merit because the sentencing
documents reflected that he had not been designated as a habitual offender
in this case. On the basis of that response, the lower court denied the
motion, stating that after a review of the transcripts and court records, “[t]he
Defendant was not sentenced as a habitual felony offender upon revocation
of his probation.”
Duquesne moved for rehearing and clarified his argument. Relevantly,
he asserted:
If the sentences are non-HFO, as this Court holds, then the two
sentences running concurrent would equal 5 years in length and
not ten years as . . . orally pronounced [referencing a transcript
excerpt of the probation violation hearing]. The two 5-year non-
HFO sentences would have to run consecutively to equate to the
10 years Duquesne is now serving. . . . The only scenario in
which the two 10-year sentences running concurrent can exist is
if the two third-degree felony offenses are HFO sentences.
The lower court denied the motion for rehearing, finding that: 1) the oral
pronouncement controls over the written sentence; 2) the oral
pronouncement did not assert that the sentences were to run concurrently;
and 3) it was therefore evident that the court intended the sentences to run
consecutively.
3
On appeal, Duquesne argues that the two offenses for which he was
convicted and sentenced after the revocation of probation were third-degree
felonies, so the maximum sentence that could be imposed for each of those
offenses was five years under section 775.082(3)(e), Florida Statutes
(2015), absent some form of statutory enhancement or reclassification. In
response, the State acknowledges that the two sentences of ten years each
exceed the statutory maximum, and would thus be illegal, unless supported
by some form of statutory enhancement or reclassification, none of which
appear in the attachments to any of the motions, responses, or order.2
Additionally, the written sentence further imposed a general sentence of ten
years, without dividing the sentence between the two offenses. See Brazley
v. State,
871 So. 2d 986 (Fla. 3d DCA 2004); Fla. R. Crim. P. 3.701(d)(12).
Accordingly, on remand, if the trial court does not have any
documentation reflecting a statutory enhancement that would permit
sentences in excess of the statutory maximum of five years for each offense,
2
The State notes that it is also legal for a sentence to exceed the statutory
maximum sentence under section 775.082 when the total points in the
Criminal Punishment Code sentencing scoresheet result in the lowest
permissible sentence that exceeds the statutory maximum. § 921.0024(2),
Fla. Stat. (2015). However, the lowest permissible sentence cannot be
ascertained on the summary record in this appeal, as the scoresheet is not
appended to any of the pleadings or orders.
4
then the court should resentence Duquesne. Duquesne contends that the
rule of lenity mandates that on remand, he should be resentenced to no more
than two concurrent, five-year terms, which would entitle him to immediate
release. We disagree. A trial court may exercise its discretion to restructure
a defendant’s challenged sentences to accomplish its previously declared
sentencing goal by changing concurrent terms to consecutive terms, as long
as the new sentence is not found to be vindictive. See Sands v. State,
899
So. 2d 1208, 1210-11 (Fla. 5th DCA 2005); Herring v. State,
411 So. 2d 966
(Fla. 3d DCA 1982).
Reversed and remanded for further proceedings consistent herewith.
5
