MICHAEL C. WILLIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Willis appealed his resentencing, arguing that increasing his sentence from five years probation with three years imprisonment to five years straight imprisonment constituted impermissible punishment enhancement in violation of constitutional protections against vindictive sentencing. The court affirmed, holding that under Villery v. Florida Parole and Probation Commission, a trial court may impose any sentence of imprisonment not exceeding the total period of incarceration and probation originally imposed.
The court affirmed the resentence, holding that under Villery, a trial court is authorized upon corrective resentencing to impose any sentence of imprisonment that does not exceed the total period of incarceration and probation originally given, unless a condition of probation has been violated. Such a sentence does not constitute an impermissible increase in violation of double jeopardy protections.
[1] A trial court may correct a sentence pursuant to Villery v. …
[2] A resentence that imposes greater punishment than originally imposed may be unconstitutional.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the supreme court authorized the trial court, upon corrective re-sentencing, to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given, unless a condition of probation had been violated”
Establishes the governing rule from Villery allowing restructuring of sentences within the total confinement period
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Join FLexlaw to unlock all legal intelligenceWillis was originally sentenced to five years probation with a special condition that he serve three years imprisonment. On his motion to correct the …
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FERGUSON, Judge.
This appeal is from a sentence corrected pursuant to Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). Appellant was originally placed on five years probation with a special condition that he serve three years imprisonment. On his motion to correct sentence the trial court vacated the probation and sentenced the defendant to five years imprisonment.
Appellant contends that the resentence constitutes greater punishment than was originally imposed and is therefore unconstitutional; that any interpretation of the Villery decision to sanction a harsher resen-tence is contrary to the limitations set out in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (to assure the absence of vindictiveness on the part of the judge against defendant for having successfully attacked his first conviction, whenever a judge imposes a more severe sentence after a new trial, he must affirmatively state the reasons and facts upon which such increased sentence is based)..
In Villery, supra, the supreme court authorized the trial court, upon corrective re-sentencing, to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given, unless a condition of probation had been violated. This rule has been restated in several Florida cases. Gomez v. State, 409 So. 2d 1096 (Fla. 3d DCA 1982). Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). We must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy. Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982) (question certified).
Affirmed.
DANIEL S. PEARSON, Judge, specially
concurring.
As I have previously noted, see Herring v. State, 411 So. 2d 966, 970 n. 11 (Fla. 3d DCA 1982), I do not agree that because a change of sentence complies with Villery, it cannot, ipso facto, violate due process under North Carolina v. Pearce. Yet I take this to be the majority’s meaning when it declares that “[w]e must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy.” (emphasis supplied). I concur, however, in the affirmance because there is not the slightest showing in the record that as a matter of fact the corrected sentence will increase the defendant’s incarceration beyond three years.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982)…95 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This question was first raised in the dissent in Lauxman v. State, 402 So. 2d 432 (Fla. 5th DCA 1981), but since then has been decided many times against appellant’s contention. See Willis v. State, 413 So. 2d 1290 (Fla. 3d DCA 1982); Adams v. State, 414 So. 2d 1079 (Fla. 1st DCA 1982), question certified, 414 So. 2d 1079 at 1081 (Fla. 1st DCA May 26,1982) [1982 FLW 1109]; Jackson v. State, 412 So. 2d 384 (Fla. 5th DCA 1982); Beech v. State, 411 So. 2d 1384 (F…
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Alexander v. State, 422 So. 2d 25 (Fla. 2d DCA 1982)…Fla. 1st DCA 1982) (two-one decision) (question certified), the court faced the same argument we deal with today. See also Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA, 1982); Williams v. State, 417 So. 2d 780 (Fla. 3d DCA, 1982); Willis v. State, 413 So. 2d 1290 (Fla. 3d DCA 1982); Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982) (question certified). In Adams, appellant had been sentenced to 15 years probation on condition that he serve the first two years in prison. Subsequent to Vil-lery, he was resen…
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Williams v. State, 417 So. 2d 780 (Fla. 3d DCA 1982)…filed by the defendant to correct the original sentence under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981) runs afoul of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Willis v. State, 413 So. 2d 1290 (Fla. 3d DCA 1982). It may also be observed that seeking Vil-/ery-related relief is always a matter of voluntary choice, with the possible consequences of that action fully and previously known to the movant. In this case, moreover, the trial cour…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Holmes v. State, 405 So. 2d 436 (Fla. 5th DCA 1981)
- Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982)
- Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981)
- Gomez v. State, 409 So. 2d 1096 (Fla. 3d DCA 1982)