VEREL T. WESTOVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Westover appealed his resentencing after this court had previously reversed his sentence for lack of written reasons supporting downward departure. On remand, the trial court initially imposed a lawful fifteen-year probationary sentence, but then unilaterally increased it to thirty years without Westover's presence. The appellate court reversed, holding that increasing a lawful sentence violates double jeopardy protections.
The trial court violated Westover's Fifth Amendment double jeopardy rights by increasing the previously imposed lawful fifteen-year probationary sentence to thirty years probation. Once a defendant begins serving a lawful sentence, the trial court lacks authority to impose a harsher sentence.
[1] A trial court cannot increase a lawful sentence previously imposed on a defendant once the defendant begins to serve that sentence.
[2] Increasing a defendant's sentence after it has been lawfully imposed and begun to be served violates the double jeopardy clause of the Fifth Amendment.
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Join FLexlaw to unlock all legal intelligence“An increase in a lawful sentence is expressly prohibited grounded upon the double jeopardy clause of the fifth amendment to the United States Constitution.”
States the fundamental constitutional principle prohibiting sentence increases
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Join FLexlaw to unlock all legal intelligenceWestover was convicted of first degree arson, burning to defraud, and insurance fraud. On appeal, this court affirmed the convictions but reversed the…
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PARKER, Judge.
Westover alleges that the trial court illegally enhanced his sentence at a second resentencing hearing held after remand from this court. We agree and reverse.
On February 7, 1986, this court affirmed Westover’s convictions for first degree arson, burning to defraud, and insurance fraud but reversed the trial court’s imposition of probation. We remanded the case solely for resentencing because the trial court had previously departed downward from the recommended guidelines sentence without providing written reasons.1
On April 25, 1986, Westover appeared at the resentencing hearing pursuant to this court’s mandate. The trial court once again departed and orally sentenced West-over to fifteen years probation, ordering him to pay $17,000 restitution. Without Westover being present, the trial court unilaterally entered an order on May 16, 1986, sentencing Westover to thirty years probation on the arson charge and five years probation on the other two offenses, all terms to run concurrently.2 Westover moved for correction or modification of probation. The trial court denied the motion at a hearing on May 26, 1986, restating its May 16 sentence.
An increase in a lawful sentence is expressly prohibited grounded upon the double jeopardy clause of the fifth amendment to the United States Constitution. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). Once a defendant begins to serve his sentence, the trial court has no authority to impose a harsher sentence. Daniels v. State, 513 So. 2d 244 (Fla. 2d DCA 1987); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984).
The trial court’s action in increasing its previously imposed lawful sentence of fifteen years probation to thirty years probation violated Westover’s constitutional right against double jeopardy. Daniels; Hinton.
Accordingly, we reverse Westover’s thirty year sentence of probation and remand this case with instructions that the trial court resentence Westover to the fifteen-year probationary term originally set.
RYDER, A.C.J., and CAMPBELL, J., concur. . Westover v. State, 482 So. 2d 599 (Fla. 2d DCA 1986).
. This order also set forth written reasons for departure in compliance with this court’s instructions on remand; that aspect of the order is not before us in this appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- Haag v. State, 513 So. 2d 244 (Fla. 4th DCA 1987)
- Verel T. Westover v. State, 482 So. 2d 599 (Fla. 2d DCA 1986)