DANIEL PAHUD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of two counts of lewd assault on a child and initially sentenced to twenty concurrent years, exceeding the statutory ten-year maximum per count. After vacating the sentences due to a missing psychiatric examination requirement, the trial court re-sentenced him to two consecutive ten-year terms. The appellate court reversed, holding that once a valid portion of a sentence has commenced service, a court cannot increase the severity of that portion by changing concurrent to consecutive terms.
The court reversed and remanded, holding that a court may not increase or make more severe the valid portions of any sentence originally imposed once service of the legal portion of the sentence has commenced. Changing concurrent to consecutive terms violates this principle and constitutes an impermissible increase in punishment.
[1] A sentence imposed in excess of the statutory maximum is void only as to the excess, not in its entirety.
[2] A court may not increase or make more severe the valid portions of a sentence once service of the legal portion has commenced.
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Join FLexlaw to unlock all legal intelligence“a court may not increase or make more severe the valid portions of any sentence originally imposed if service of the legal portion of the sentence has commenced”
Establishes the core holding prohibiting courts from enhancing valid portions of sentences once execution has begun
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Join FLexlaw to unlock all legal intelligencePahud was convicted of two counts of lewd assault on a child under the old child molester statute (Chapter 801, Florida Statutes). He was initially se…
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PER CURIAM.
In this case, the appellant was convicted of two counts of lewd assault on a child and sentenced to two concurrent twenty-year terms of imprisonment, notwithstanding that the statutory maximum was ten years as to each count. This excess was arrived at under the old child molester act which in 1969 was found in Chapter 801 of the Florida Statutes. It provided that any person properly convicted under an offense within the meaning of the chapter, could be sentenced to a term not to exceed twenty-five years. However, a condition precedent to any such sentencing was a court ordered psychiatric examination, which was never actually carried out.
Thereafter, in 1977 the defendant moved to vacate the sentences for lack of said examination as a result of which the sentences were vacated. At the new sentencing hearing the judge re-sentenced the defendant to two ten-year terms to run consecutively.
We would be inclined not to view this as an enhanced sentence for we see little if any difference in the result. In both events the sentence is twenty-years imprisonment. However, our research of the case law on the subject would indicate that we must reverse.
It appears that where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal, or authorized, portion of the sentence void, but only leaves such portion of the sentence as may be excessive, open to modification. In other words, the sentence is legal so far as it is within the provisions of the statute and only void as to the excess. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); United States v. Prid- geon, 153 U.S. 48, 62, 14 S.Ct. 746, 38 L.Ed. 631 (1894); Duggins v. United States, 240 F. 2d 479 (6th Cir. 1957); Kennedy v. United States, 330 F. 2d 26 (8th Cir. 1964).
Moreover, a court may not increase or make more severe the valid portions of any sentence originally imposed if service of the legal portion of the sentence has commenced. Ex parte Lange, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930); United States v. Best, 571 F. 2d 484 (9th Cir. 1978); Duggins, supra; Kennedy, supra; Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972). Since the concurrent term of the sentences first imposed was a valid portion of those sentences, the change thereof to consecutive terms is held to have increased petitioners punishment. Kennedy, supra; Duggins, supra; United States v. Best, supra.
According to the above authority an exception to the general rule cannot be made even though the purpose of the “increase” is to carry out the purportedly original intention of the trial judge to impose a twenty-year term. Kennedy, supra; Duggins, supra; United States v. Sacco, 367 F. 2d 368 (2d Cir. 1966). See also Brown v. State, supra.
Therefore this cause is reversed and remanded for the entry of a corrected sentence in accordance herewith.
REVERSED AND REMANDED.
DOWNEY, C. J„ and LETTS and MOORE, JJ., concur.
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Citator
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Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)…t chooses, accomplish that sentencing goal by imposing consecutive sentences.1 We acknowledge that our authorization of this change from concurrent to consecutive sentences directly conflicts with the decision of our sister court in Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979). We believe, however, that Pahud was wrongly decided ab initio and, moreover, has been overruled, sub silentio, by Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (Fla.1981). I. In Pahud, the defendant was sen…
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Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)…of a negotiated plea agreement, since a defendant cannot acquiesce in an illegal sentence. Id. at 639. Sentences which exceed the maximum permitted by law are considered void to the extent by which they exceed the statutory maximum. Pahud v. State, 370 So. 2d 66, 67 (Fla. 4th DCA 1979). Since the special condition of probation provides for a term of imprisonment in a county facility which exceeds that permitted by law, that condition is void. Its invalidity could not therefore be waived by the appellant as…
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Aleño Santana Madrigal v. State, 683 So. 2d 1093 (Fla. 4th DCA 1996)…robation. Absent any other error, this error would require reversal and remand for the trial court to reduce appellant’s sentence on Count III to five years incarceration. See Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990); Pahud v. State, 370 So. 2d 66 (Fla. 4th DCA 1979) (“the sentence is legal so far as it is within the provisions of the statute and only void as to the excess”). However, because Count III was affected by the score-sheet error discussed above, appellant should be resentenced in a…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ex parte Lange, 18 Wall. 163 (U.S. 1873)
- United States v. Benz, 282 U.S. 304 (U.S. 1931)
- United States v. Pridgeon, 153 U.S. 48 (U.S. 1894)
- Duggins v. United States, 240 F.2d 479 (6th Cir. 1957)
- Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964)
- United States v. Sacco, 367 F.2d 368 (2d Cir. 1966)
- United States v. Best, 571 F.2d 484 (9th Cir. 1978)
- Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972)