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Pestana v. State

The trial court was authorized to reinstate the defendant's original sentence after finding that the petition for discharge indicating that the defendant had fulfilled the terms of his probation was based on a data entry error.

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In November 2009, James Andrews Pestana entered a negotiated plea of guilty to aggravated assault1 and was sentenced under the First Offender Act2 to confinement for a period of ten years, which sentence could be served on probation. In July 2013, the superior court signed an order of discharge after Pestana’s probation officer filed a petition for discharge indicating that Pestana had fulfilled the terms of his probation. The court subsequently rescinded the discharge order and reinstated Pestana’s original sentence, and Pestana appeals that ruling. Because the superior court has plenary power to correct its own mistaken ruling during the same term of court, we affirm.

The record shows that Pestana was charged with two counts of aggravated assault with a deadly weapon, a handgun, arising from a single incident between Pestana and two alleged victims, Gary Berrong and Scott Albach.3 The incident was part of an escalating neighborhood dispute allegedly involving roving ducks, a “mooning” incident, and land disturbance causing water on a roadway. Pestana had become estranged with certain neighbors, and in June 2009, after several confrontations, Berrong and Albach stopped their truck in the roadway and began taking photographs of Pestana for a pending lawsuit while he mowed his grass approximately 50 feet away. Pestana, who almost always carried a firearm,4 pulled a handgun out of his pocket, pointed it at the men, and “told them they needed to keep going.” Berrong and Albach immediately complied.

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