SAMUEL E. RIZZO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Samuel Rizzo appealed his conviction for aiding and abetting armed robbery, challenging the trial court's imposition of a consecutive sentence after initially announcing a concurrent sentence. The Florida appellate court affirmed, holding that the trial judge properly corrected his sentencing pronouncement before the judgment was filed and the defendant began serving the sentence.
A trial court may correct its sentencing pronouncement and impose an increased consecutive sentence where, as here, the written judgment has not been filed and the defendant has not commenced service of the sentence. The Constitution does not require that sentencing be 'a game in which a wrong move by the judge means immunity for the prisoner,' and a trial court need not adhere to a sentence merely because it has been announced.
[1] A trial court may correct a misspoken sentencing intention before the defendant begins serving the sentence or the written judgment is filed.
[2] A defendant may not be resentenced to an increased term of incarceration once the defendant has begun serving a lawfully-imposed sentence.
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Join FLexlaw to unlock all legal intelligence“the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner”
Establishes the principle that trial judges are not bound by erroneous sentencing pronouncements under the Constitution.
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Join FLexlaw to unlock all legal intelligenceThe trial court initially announced that Rizzo's sentence would 'run concurrent with any and all sentences' under which he was then confined. After th…
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WENTWORTH, Judge.
Appellant seeks review of a judgment of conviction and sentence for the offense of aiding and abetting the commission of a robbery with a firearm. We find that appellant has failed to present any point of reversible error, and we affirm the order appealed.
Appellant contends that the trial court erred by imposing a consecutive sentence after initially announcing that appellant’s term of incarceration would “run concurrent with any and all sentences” under which appellant was then confined. At the conclusion of the initial sentencing colloquy appellant and his attorney both left the courtroom, appellant was fingerprinted, and a written sentence form was prepared in accordance with the court’s pronouncement of a concurrent sentence. The sentencing proceeding was reconvened and, after obtaining the presence of appellant and the respective attorneys, the judge announced that he had intended to impose a consecutive, rather than concurrent, term of incarceration. The judge explained that he had apparently previously misspoken his sentencing intention; a consecutive term of imprisonment was then imposed.
It is well established that once a defendant has begun serving a lawfully-imposed sentence, the defendant may not thereafter be resentenced for an increased term of incarceration. See e.g., Pooley v. State, 403 So. 2d 593 (Fla. 1st DCA 1981); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978).
However, as the United States Supreme Court indicated in Bozza v. U.S., 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), “the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner,” and as our own court has held in Williams v. State, 365 So. 2d 201 (Fla. 1st DCA 1978), a trial court need not adhere to a sentence “merely because it has been announced.” Accord, Kroll v. U.S., 433 F. 2d 1282 (5th Cir.1970); Williams v. U.S., 422 F. 2d 1318 (5th Cir.1970).
The record in the present case does not suggest that the written judgment and sentence forms had been filed, or that appellant had commenced service of his sentence. Unlike Troupe v. Rowe, 283 So. 2d 857 (Fla.1973), the present case does not involve the abrogation of a judicially accepted negotiated plea agreement. In these circumstances it was not error for the trial judge to correct his earlier misstatement and impose a consecutive sentence in accordance with his original sentencing intention. See Williams v. U.S., supra; cf., Williams v. State, supra.
The order appealed is affirmed.
SHIVERS and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983)…4th DCA 1980); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978); Flowers v. State, 351 So. 2d 387 (Fla. 1st DCA 1977); Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976). The few instances where the increase has been upheld include Rizzo v. State, 430 So. 2d 488 (Fla. 1st DCA 1983), where the judge was allowed to correct a slip of the tongue, even though it meant an enhanced sentence. In Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981), the original sentence was set aside because of a material mistake of l…
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Kelly v. State, 137 So. 3d 2 (Fla. 1st DCA 2014)…h instances. Increased Mandatory Minimum Sentence “It is well established that once a defendant has begun serving a lawfully-imposed sentence, the defendant may not thereafter be resentenced for an increased term of incarceration.” Rizzo v. State, 430 So. 2d 488 (Fla. 1st DCA 1983). This principle applies to any increase to a mandatory minimum aspect of a sentence. See Macias v. State, 572 So. 2d 22, 23 (Fla. 4th DCA 1990) (holding it was error to increase a mandatory minimum sentence once the court entered…
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MacIas v. State, 572 So. 2d 22 (Fla. 4th DCA 1990)…d out in Cherry that in addition to lacking authority under the rules, an increase of a lawful sentence is expressly prohibited by case law and constitutes double jeopardy. It noted a few instances where the increase has been upheld: Rizzo v. State, 430 So. 2d 488 (Fla. 1st DCA), pet. for rev. denied, 440 So. 2d 353 (Fla.1983); Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). This court concluded that, none of those fact patterns being present, the general…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bozza v. United States, 330 U.S. 160 (U.S. 1947)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970)
- Myles C. Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978)
- Williams v. United States, 422 F.2d 1318 (5th Cir. 1970)
- Abreau v. State, 365 So. 2d 201 (Fla. 3d DCA 1978)
- Floyd v. United States Sugar Corp. & Gallagher Bassett Ins. Serv., 403 So. 2d 593 (Fla. 1st DCA 1981)