Third District Court of Appeal

State of Florida 

Opinion filed April 5, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1954

Lower Tribunal No. F15-23351

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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 
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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).
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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 nonHFO 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.
4

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.
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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.