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Smarr v. State

The trial court impermissibly increased the custodial terms of the defendant's sentence after he began serving it.

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Following a jury trial, Deonte Smarr was convicted on one count of burglary and one count of criminal attempt to commit burglary. He subsequently filed a motion for new trial, which the trial court denied. Smarr argues on appeal that the trial court erred in admitting similar-transaction evidence and in denying his motion for directed verdict as to the charge of attempted burglary, and further that his trial counsel rendered ineffective assistance for various reasons. Smarr also asserts that the trial court impermissibly increased his sentence after he began serving same. We agree that the trial court erred in increasing Smarr’s sentence and therefore vacate that order and remand this case for resentencing; however, we affirm Smarr’s convictions in all other respects.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict.1 So construed, the evidence adduced at trial showed that on May 12, 2009, a deputy with the Douglas County Sheriff’s Office was on routine patrol during the very early morning hours and observed three individuals dressed in all black and wearing ski masks attempting to load what appeared to be a large box onto the bed of a truck parked behind a convenience store located on Anneewakee Road the “Anneewakee burglary”. As the deputy approached in his marked vehicle, the three individuals fled on foot and the driver of the truck led the deputy on a high-speed chase, ending only when the truck crashed into a ditch. The deputy immediately apprehended the truck’s driver, Annie Freeman, and placed her under arrest; the three fleeing individuals, however, were not located at that time.

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