          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-5552
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ANTHONY M. GARTMAN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.

                           July 25, 2018


PER CURIAM.

     In an earlier appeal, we reversed Anthony Gartman’s
sentences and remanded for resentencing. Gartman now appeals
his new sentences, alleging a double jeopardy violation. We affirm.

     Gartman was convicted of armed robbery and possession of a
firearm by a convicted felon. See Gartman v. State, 197 So. 3d 1181
(Fla. 1st DCA 2016). The trial court originally imposed a twelve-
year sentence with a ten-year mandatory minimum on Count I
(armed robbery) and a six-year sentence with a three-year
mandatory minimum on Count II (felon in possession). The court—
relying on the then-controlling decision in Walton v. State, 106 So.
3d 522 (Fla. 1st DCA 2013), rev’d, 208 So. 3d 60 (Fla. 2016)—
concluded it had to impose the sentences consecutively and “stack”
the mandatory-minimum terms. Accordingly, the court imposed a
cumulative sentence of 18 years with a 13-year mandatory
minimum.

     While Gartman’s first appeal was pending, the Florida
Supreme Court decided Williams v. State, 186 So. 3d 989 (Fla.
2016), which precluded Gartman’s consecutive sentences. We
therefore reversed Gartman’s sentences and remanded for
resentencing in light of Williams. Gartman, 197 So. 3d at 1182. We
did not disturb the convictions. Id.

     On remand, the trial court—attempting to achieve a “fair
outcome” and effectuate its original sentencing intent—sentenced
Gartman to 18 years’ prison with a ten-year mandatory-minimum
for Count I. The court reimposed the original Count II sentence
(six years with a three-year mandatory-minimum) and ordered the
Count I and Count II sentences to run concurrently. The practical
effect of this decision was that Gartman’s cumulative sentence
remained essentially unchanged, the only difference being a
marginally shorter mandatory-minimum term. Gartman objected,
arguing that because he had only challenged the legality of his
Count II sentence—not his Count I sentence—the court’s authority
on remand was limited to the ministerial task of adjusting the
previously imposed sentences to run concurrently. Gartman
essentially argued that, pursuant to this court’s mandate, he was
to receive a sentence of twelve years’ prison with a ten-year
mandatory-minimum and the court had no discretion to impose
any other sentence.

     In a subsequent rule 3.800(b)(2) motion, Gartman renewed his
claim that the court had exceeded its authority under the appellate
mandate, and he argued the sentencing order violated the Florida
and Federal constitutions’ prohibitions against double jeopardy by
increasing his Count I sentence, which he contended was not at
issue in his first appeal. The court denied the motion, and Gartman
appealed.

      Florida law has long recognized that when a defendant
successfully challenges his sentence on one count, a resentencing
trial court cannot change sentences relating to other counts, if the
appellate court’s mandate did not affect those other counts. See,
e.g., Fasenmyer v. State, 457 So. 2d 1361, 1362 (Fla. 1984). But in
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this case, our earlier decision reversed Gartman’s sentences on
both counts—not just on Count II. Therefore, “the requirement for
concurrent sentences [did] not preclude the trial court on remand
from structuring [Gartman]’s sentences in a manner that achieves
the original sentencing goal.” Simmons v. State, 215 So. 3d 162,
163 (Fla. 1st DCA 2017); see also James v. State, 845 So. 2d 238,
240 (Fla. 1st DCA 2003) (“[A] trial court is not barred from
accomplishing its original sentencing goals where a defendant
successfully seeks to have a sentence overturned.”) (footnote
omitted)).

     Gartman argues that he intended to challenge only his Count
II sentence in the first appeal. But his arguments in that appeal
do not control; what matters is what our decision said. And our
decision said that we “vacate the sentences [plural] and remand
for resentencing.” Gartman, 197 So. 3d at 1182. Because the
sentences (plural) were vacated, the trial court was left to impose
new sentences. Had Gartman viewed our earlier opinion’s
direction as erroneous, he could have challenged that direction
through a motion for rehearing. 1 But it was not up to the trial court
to suppose we meant something other than what we said.



    1  Gartman did twice move for rehearing in his previous
appeal. His first motion asked the court to reconsider its opinion
affirming his convictions and sentences. See Gartman v. State,
1D15-1875, 2016 WL 697400 (Fla. 1st DCA Feb. 22, 2016),
superseded, 2016 WL 2610592 (Fla. 1st DCA May 6, 2016).
Because the Florida Supreme Court decided Williams in the
interim, we granted that motion, withdrew our earlier decision
affirming, and issued a written opinion explaining that he was
entitled to resentencing in light of Williams. See Gartman v. State,
2016 WL 2610592 (Fla. 1st DCA May 6, 2016), superseded, 197 So.
3d 1181 (Fla. 1st DCA 2016). That opinion contained the same
language stating that we “vacate the sentences [plural] and
remand for resentencing.” Gartman then filed a second motion for
rehearing asking the court to clarify that neither the mandatory-
minimum terms or the underlying sentences could be ordered to
run consecutively, which we also granted, resulting in our final
published decision. See Gartman, 197 So. 3d 1181. But Gartman
did not address the portion of our opinion reversing both sentences.
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    Accordingly, we conclude that the trial court did not err in
resentencing Gartman in a manner consistent with its original
sentencing goals. 2

    AFFIRMED.

JAY, WINSOR, and M.K. THOMAS, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and David Alan Henson, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




The resentencing court correctly noted that our prior mandate
“specifically vacated both sentences, with the only instruction
being that Count Two could not run consecutively, in any manner,
to Count One.” (emphasis in original).
    2  We note that “Gartman has never challenged his increased
sentence as being the product of judicial vindictiveness.” Reply Br.
at 3; see also Wilson v. State, 845 So. 2d 142, 148 (Fla. 2003) (“The
legal principle referred to as a presumption of judicial
vindictiveness has constitutional roots and developed through a
line of United States Supreme Court decisions beginning with
North Carolina v. Pearce, 395 U.S. 711, (1969).”).



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