LARONALD SPEAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reversed a resentencing order that increased the probationary period of the appellant's split sentence, holding that double jeopardy protections preclude resentencing merely because the trial court misapprehended the legal effect of sentencing guidelines after the original sentence had commenced.
Double jeopardy protections preclude resentencing in these circumstances. The court rejected the state's arguments that probation is distinguishable from a sentence for double jeopardy purposes and that the probationary period could be altered while the appellant was still incarcerated. The prohibition on resentencing is not absolute, but applies here because the appellant did not intentionally misrepresent facts to induce a more lenient sentence.
[1] A court may not resentence a defendant to increase the probationary period of a split sentence after the original sentence has commenced, even if the original sentence wa…
[2] Probation is considered part of a defendant's sentence for purposes of double jeopardy protection against increasing a sentence after it has commenced.
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Join FLexlaw to unlock all legal intelligence“resentencing is not permitted merely because of a misapprehension as to the court's sentencing prerogatives”
Establishes the core holding that a court cannot resentence based on its own legal error
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Join FLexlaw to unlock all legal intelligenceSpear received a split sentence from the trial court. Several days after the original sentence was imposed and Spear had begun serving it, the court d…
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ALLEN, Judge.
The appellant challenges an order increasing the probationary period of his split sentence. This order was entered over the appellant’s objection at a new sentencing hearing several days after the original sentence was imposed. The court had apparently mis conceived the legal effect of the sentencing guidelines when imposing the original sentence, and resentenced the appellant after becoming aware of this misconception. We agree with the appellant that such resentencing is precluded by the constitutional protections against double jeopardy.
The appellant had begun serving the lawful sentence which the court originally imposed, and resentencing is not permitted merely because of a misapprehension as to the court’s sentencing prerogatives. See Brown v. State, 521 So. 2d 110 (Fla.), cert. denied, 488 U.S. 912, 109 S.Ct. 270, 102 L.Ed.2d 258 (1988); Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992).
We reject the state’s assertion that the probationary period could be altered because it was not a “sentence.” Although in certain contexts a distinction may be made between probation and a sentence of imprisonment, it is well established that probation is within the ambit of the double jeopardy protection against increasing a sentence after it has commenced. See e.g. Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Williams v. State, 578 So. 2d 846 (Fla. 4th DCA 1991); Westover v. State, 521 So. 2d 344 (Fla. 2d DCA 1988). We likewise reject the state’s assertion that the period of probation could be altered while the appellant was still incarcerated, as the probationary period had not yet commenced.
The state relies on language in section 948.01(6), Florida Statutes, which relates to parole and gain time concerns, but which does not govern the double jeopardy analysis. Rather, the total sanction imposed must be considered for purposes of double jeopardy. Cf., Ayala.
Nevertheless, the double jeopardy prohibition against resentencing is not absolute. If a defendant makes an intentional and material misrepresentation as to a factual matter which induces a more lenient sentence, the defendant may not have a legitimate expectation as to the finality of the sentence and double jeopardy protections might not preclude the subsequent imposition of a corrected sentence. See Goene v. State, 577 So. 2d 1306 (Fla.1991); see also United States v. Jones, 722 F. 2d 632 (11th Cir.1983).
In the present case the appellant agreed with and acquiesced in the court’s apparent misconception as to the manner in which the sentencing guidelines would apply. There is no suggestion that the appellant induced such misconception or intended to deceive the court. This is unlike the factual misrepresentation involved in Goene, and is more akin to legal argument (as was involved in Brown).
In these circumstances, double jeopardy protections preclude the court from extending the appellant’s lawful split sentence with an extended period of probation.
The challenged order is reversed and the cause is remanded.
SMITH and DAVIS, JJ., concur.
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Citator
Cited By
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Nellums v. State, 863 So. 2d 366 (Fla. 1st DCA 2003)…PER CURIAM. The appellant challenges the action of the trial court in resentencing him on November 14, 2001. We agree with the appellant that such resentencing is precluded by the constitutional protections against double jeopardy. Spear v. State, 632 So. 2d 201 (Fla. 1st DCA 1994) (“The appellant had begun serving the lawful sentence which the court originally imposed, and resentencing is not permitted merely because of a misapprehension as to the court’s sentencing prerogatives”). We reverse the sentenc…
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Navarrete v. State, 707 So. 2d 803 (Fla. 1st DCA 1998)…So. 2d 1306, 1309 (Fla.1991). Double jeopardy precludes a court from re-sentencing a defendant to a greater term because of its own misconception about the sentencing guidelines or the State’s error in calculating the scoresheet. See Spear v. State, 632 So. 2d 201 (Fla. 1st DCA 1994); Berry v. State, 547 So. 2d 1273 (Fla. 1st DCA 1989). Accordingly, we must reverse the ten-year term and remand for imposition of the original eighty-two month sentence. However, a trial court has inherent power to correct a scr…
Authorities Cited
- Goene v. State, 577 So. 2d 1306 (Fla. 1991)
- United States v. Jones, 722 F.2d 632 (11th Cir. 1983)
- Madsen v. State, 521 So. 2d 110 (Fla. 1988)
- Williams v. State, 578 So. 2d 846 (Fla. 4th DCA 1991)
- Hurtado v. United States, 488 U.S. 912 (U.S. 1988)
- Florida v. Belcher, 488 U.S. 912 (U.S. 1988)
- Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992)
- Daniels v. State, 521 So. 2d 344 (Fla. 2d DCA 1988)
- Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991)