Kent Allen Sallas v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
KENT ALLEN SALLAS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D11-2667 & 4D13-524
[October 22, 2014]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case Nos.
1998CF008174 AXX and 502003CF012490A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
This consolidated appeal stems from the proceedings that followed
Defendant’s filing of a rule 3.800(a) motion challenging the sentence
imposed in a 1998 case following a violation of probation (L.T. Case No.
98-8174). The sentence imposed in the 1998 VOP case was entered
simultaneously with a 2003 case involving new charges (L.T. Case No. 03-
12490), and a single score sheet was used. As we explain, while the error
alleged with regard to the VOP case (98-8174/4D11-2667) has been
rendered moot, the trial court erred in resentencing Defendant in the case
which involved the new charges (03-12490/4D13-524).
In lower court case numbers 98-8174 and 03-12490, Defendant filed a
rule 3.800(a) motion to correct illegal sentence. In his motion, Defendant
alleged that, in June of 2005, he was simultaneously sentenced for a
violation of the probation (VOP) imposed in lower court case number 98-
8174 and for the crimes in lower court case number 03-12490. Following
the plea to the VOP, the trial court sentenced Defendant to 25.475 years
in prison for count 1 and to 5 years in prison for count 3, with the
sentences to run concurrent with those imposed in the 2003 case.
Defendant challenged the sentences imposed in 98-8174 on two grounds.
First, the 5-year prison sentence on count 3 was illegal as no probation
had been imposed for count 3. Second, the 25.475-year prison sentence
imposed for count 1 was based upon an incorrect score sheet as the trial
court had both used the wrong version of the guidelines score sheet and
incorrectly used a single score sheet for the VOP in 98-8174 and the 2003
case. Defendant argued the use of the single, incorrect score sheet had
resulted in an increased VOP sentence for count 1 in 98-8174, but
conceded the sentences imposed in the 2003 case did not need to be
altered due to his PRR status. The trial court granted the motion to the
extent it challenged the sentence imposed for count 3 in 98-8174, but
denied relief as to count 1.
Defendant appealed the trial court’s ruling denying him relief as to
count 1 in 98-8174 (4D11-2667). During the pendency of the appeal,
Defendant filed a motion asserting that the State had conceded the
sentence imposed upon the VOP in 98-8174 was based upon the wrong
version of the guidelines and asking that this court relinquish jurisdiction
to the trial court to correct the error. We granted the motion and
relinquished jurisdiction to the trial court. Then, following a hearing and
the preparation of separate score sheets for 98-8174 and 03-12490, the
trial court resentenced Defendant on count 1 in 98-8174 and reduced
Defendant’s sentence in that case from 24.475 years to 11.825 years. The
trial court also resentenced Defendant in 03-12490 and increased the
sentence from 15 years to 17.966 years, with 15 years to be served as a
PRR.1 Defendant then appealed the sentence imposed in 03-12490 during
the relinquishment period (4D13-524).
The trial court’s resentencing of Defendant for count 1 in 98-8174,
based upon a corrected score sheet, renders the appeal in 4D11-2667
moot. We must, however, reverse the sentence imposed during the
relinquishment period in 03-12490 for two primary reasons. First, our
order relinquishing jurisdiction to the trial court was limited to 98-8174;
and second, Defendant was not seeking relief from the sentence imposed
in 03-12490. See Kenny v. State, 916 So. 2d 38 (Fla. 4th DCA 2005)
(holding trial court lacked jurisdiction to modify sentences imposed in
1 Previously, Defendant had been sentenced to 15 years as a PRR, but the State
argued that, under the CPC, the court was required to impose the lowest
permissible sentence as calculated by the CPC if such lowest permissible
sentence exceeded the PRR sentence. The trial court agreed with the State and
resentenced Defendant accordingly.
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2001 cases where the defendant’s rule 3.800(a) motion challenged only the
sentences imposed in his 1998 and 1999 cases). Significantly, the State
never independently sought to challenge Defendant’s original sentence in
03-12490 as an illegal sentence.
Reversed and Remanded.
WARNER and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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