Burnett v. State

Jon Burnett seeks review of the trial court's order resentencing him to fifteen years in prison followed by fifteen years' sex offender probation for two counts of lewd or lascivious conduct. Because the trial court was without jurisdiction to increase the sentences for convictions that were affirmed on appeal, we reverse. Burnett was originally convicted of two counts of lewd or lascivious conduct and 136 counts of possession of child pornography. The trial court imposed concurrent sentences of fifteen years in prison on the lewd or lascivious conduct counts followed by a total of twenty years' probation on the possession of child pornography counts.1 On appeal, this court reversed the convictions for possession of child pornography, affirmed the convictions for lewd or lascivious conduct, and remanded for ""resentencing."" See Burnett v. State, 848 So. 2d 1170, 1176 (Fla. 2d DCA 2003). On remand, the trial court resentenced Burnett to two concurrent terms of fifteen years in prison followed by fifteen years' sex offender probation. The court expressed its intention to achieve its original sentencing plan of a period of incarceration followed by a period of probation, which was designed to afford Burnett the opportunity to obtain sex offender counseling after his incarceration. These sentences were significantly greater than the concurrent fifteen-year sentences originally imposed for the two counts of lewd or lascivious conduct.2