               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

STATE OF FLORIDA,                             )
                                              )
              Appellant,                      )
                                              )
v.                                            )          Case No: 2D13-952
                                              )
ROLAND HATTON,                                )
                                              )
              Appellee.                       )
                                              )

Opinion filed July 23, 2014.

Appeal from the Circuit Court for Pinellas
County; Chris Helinger, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Appellant.

Michael Ufferman of Michael Ufferman
Law Firm, P.A., Tallahassee, for Appellee.


PER CURIAM.

              The State appeals from the postconviction court's order granting relief on

one of the claims raised in Roland Hatton's motion for postconviction relief. We affirm in

part, and we reverse in part.

              For offenses occurring in 2003, Mr. Hatton was tried and found guilty by a

jury of sexual activity by a person in familial authority and lewd and lascivious exhibition.
The trial court sentenced him to thirty years in prison on the sexual activity charge and

fifteen years in prison on the lewd and lascivious exhibition charge. Notably, the trial

court designated the sentences to run concurrently. Mr. Hatton moved for a new trial,

which the trial court granted. Mr. Hatton was again found guilty of both offenses at his

second trial. He was resentenced by a different circuit judge. The successor judge

sentenced him to thirty years on the sexual activity charge and fifteen years on the lewd

and lascivious charge. However, the successor judge designated the sentences to run

consecutively instead of concurrently. Thus Mr. Hatton's successful new trial motion

ultimately resulted in a forty-five-year prison term instead of the thirty-year term that he

had previously received. This court affirmed Mr. Hatton's judgment and sentences

resulting from the second trial. Hatton v. State, 970 So. 2d 831 (Fla. 2d DCA 2007)

(table decision).

              Mr. Hatton filed a motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850, raising seven claims for relief. The postconviction court

summarily denied all seven of the claims raised. Mr. Hatton appealed, and this court

affirmed the postconviction court's denial of all of the claims except claim two. This

court reversed the postconviction court's order with regard to that claim and remanded

for reconsideration. Hatton v. State, 90 So. 3d 839, 840 (Fla. 2d DCA 2012). In claim

two, Mr. Hatton "asserted that counsel was ineffective for failing to advise him that he

could receive a harsher sentence on retrial" and "contended that he would not have

agreed to the filing of a motion for new trial if counsel had informed him of his potential

sentence." Id.




                                            -2-
              On remand, the postconviction court conducted an evidentiary hearing on

claim two. At the conclusion of the hearing, the postconviction court entered an order

that granted the motion as to claim two, vacated Mr. Hatton's judgment and sentences

totaling forty-five years, and ordered another new trial. The State now appeals.

              On appeal, the State argues that Mr. Hatton failed to establish either

deficient performance of counsel or prejudice. See Strickland v. Washington, 466 U.S.

668 (1984). We disagree. After a thorough review of the record, we conclude that there

is substantial competent evidence in the record supporting the postconviction court's

findings of deficient performance and resultant prejudice to Mr. Hatton. Nevertheless,

the only relief to which Mr. Hatton was entitled is the reinstatement of his original

judgment and the sentences totaling thirty years, not a third trial. Accordingly, we affirm

the postconviction court's order to the extent that it finds that Mr. Hatton is entitled to

relief on claim two and vacates the judgment and sentences resulting from the retrial.

We reverse the portion of the order granting Mr. Hatton a second new trial.

              On remand, the postconviction court shall reinstate the original judgment,

the sentence of thirty years in prison on the charge of sexual activity by a person in

familial authority, and the sentence of fifteen years in prison on the charge of lewd and

lascivious exhibition. The sentences shall be designated to run concurrently.

              Affirmed in part; reversed in part; remanded with directions.



ALTENBERND, WALLACE, and SLEET, JJ., Concur.




                                             -3-
