Pitts v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JERRY LEE PITTS, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Case No. 2D05-2729 Opinion filed August 11, 2006. Appeal from the Circuit Court for Sarasota County; Andrew D. Owens, Jr., Judge. Frederick P. Mercurio of Law Offices of Frederick P. Mercurio, P.A., Sarasota, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. Jerry Lee Pitts appeals his conviction and sentence for lewd or lascivious battery and lewd or lascivious molestation. We find merit in but one of the six issues raised by Mr. Pitts. We reverse only as to that issue. The trial court imposed a twenty-year prison sentence for lewd or lascivious battery (count I) and fifteen years of sex offender probation for lewd or lascivious molestation (count II). On Mr. Pitts motion to correct illegal sentence, the trial court reduced Mr. Pitts sentence on count I from twenty years to fifteen years. To maintain the original total prison time of twenty years, the trial court also modified Mr. Pitts sentence on count II to a consecutive five-year prison term followed by ten years of sex offender probation. Mr. Pitts argues that the trial court violated his double jeopardy rights by increasing the sentence originally imposed for count II. We agree. A motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence imposed on another count. Seago v. State, 627 So. 2d 1316, 1316 (Fla. 2d DCA 1993); Wilhelm v. State, 543 So. 2d 434, 435 (Fla. 2d DCA 1989). Therefore, we reverse and remand for the trial court to reinstate the original sentence on count II. We affirm as to the remaining issues without further comment. Affirmed in part, reversed in part, and remanded with directions. ALTENBERND and SALCINES, JJ., Concur. -2-

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