Opinion
Case No. 1D00-2033.
Opinion filed June 12, 2001.
An appeal from an order of the Circuit Court for Bay County. Don T. Sirmons, Judge.
Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
Thomas Jerome Thomas, the appellant, argues on appeal that the trial court erred in re-sentencing him to a habitual violent felony offender minimum mandatory term after it vacated his prison releasee reoffender mandatory term. We affirm.
Because the trial court vacated the appellant's previous sentence on his one count of attempted first-degree murder, no double jeopardy attached on re-sentencing. See Smith v. State, 754 So.2d 100 (Fla. 1st DCA 2000). Upon re-sentencing, the trial court could not re-sentence the appellant to a longer period of incarceration, but it could accomplish its sentencing goal of imposing a minimum mandatory sentence. See Blackshear v. State, 531 So.2d 956 (Fla. 1988); Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982). The trial court stated at the re-sentencing hearing that its intent was to impose a minimum mandatory sentence. As it was mistaken that the appellant qualified as a prison releasee reoffender, the trial court could accomplish its sentencing goal by exercising its discretion and imposing a minimum mandatory sentence under the habitual violent felony offender statute. See § 775.084(4)(b), Fla. Stat. (1999); see also State v. Hudson, 698 So.2d 831 (Fla. 1997) (court's sentencing discretion extends to imposing minimum mandatory term).
AFFIRMED.
BOOTH, WOLF and LEWIS, JJ., CONCUR.