DOLAN ROBERT KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelly was convicted of burglary with battery and robbery. On appeal, the robbery conviction was reduced to petit theft and the case remanded for resentencing. The trial court improperly resentenced Kelly on the burglary charge despite it not being subject to the appeal, violating double jeopardy protections. The appellate court vacated the increased sentence and reinstated the original sentence.
The trial court violated Kelly's constitutional protections against double jeopardy by resentencing him on Count I. Jeopardy had attached when the original sentence was imposed, and because neither party appealed that sentence and it was unaffected by the prior appeal, resentencing on that charge was impermissible.
[1] Once a sentence has been imposed and is not appealed by the defendant or the state, it is final and cannot be increased or altered by the trial court.
[2] Resentencing a defendant on a charge for which a valid sentence has already been imposed and not appealed violates the constitutional protection against double jeopardy.
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Join FLexlaw to unlock all legal intelligence“Jeopardy attached to the original sentence as to Count I (burglary with battery) when it was originally imposed. Neither the defendant nor the state appealed that sentence and it was unaffected by the prior appeal.”
Establishes the core basis for the double jeopardy violation—that the original sentence was final and could not be increased on remand
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Join FLexlaw to unlock all legal intelligenceKelly was convicted of burglary with battery (Count I) and robbery (Count II). He was originally sentenced to ten years' imprisonment on Count I and t…
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COWART, Judge.
The defendant was convicted of Count I, burglary with battery (§§ 810.02 and 810.-02(2)(a), Fla.Stat.), and Count II, robbery (§ 812.13(2)(c), Fla.Stat.). As to the burglary with battery (Count I) he was sentenced to ten years’ imprisonment; as to the robbery (Count II) he was placed on two years’ probation to run consecutive to the confine ment sentence on Count I. The defendant appealed and this court reduced the robbery conviction to petit theft and remanded for resentencing. Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986). At his sentencing hearing on remand the trial court not only sentenced the defendant on the petit theft charge (Count II) but purported to vacate the prior sentence on the burglary with battery charge (Count I) and to resen-tence the defendant on that charge to ten years’ imprisonment followed by two years’ probation.1 The defendant appeals the increased sentence as to Count I.
Jeopardy attached to the original sentence as to Count I (burglary with battery) when it was originally imposed. Neither the defendant nor the state appealed that sentence and it was unaffected by the prior appeal. The purported resentencing as to Count I violated the defendant’s constitutional rights against double jeopardy. See Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). Fasenmyer is not adversely affected by Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) which relied on United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). DiFrancesco was considered in Fasenmyer, 457 So. 2d at 1365 n. 4.
The resentencing as to Count I is vacated and the original sentence as to that Count dated December 3, 1985, is reestablished and reinstated.
SENTENCE MODIFIED AND AFFIRMED AS MODIFIED.
UPCHURCH, C.J., and SHARP, J., concur. . Being under a misimpression that the original sentence was ten years’ imprisonment on the robbery (Count II) and two years’ probation on the burglary with battery (Count I), the trial judge explained that he was resentencing defendant on the burglary with battery offense (Count I) to ten years’ imprisonment followed by two years’ probation in order to effectuate the court’s intent of the original sentencing scheme. The new sentence of confinement followed by probation is also subject to the infirmity explained in Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)…w granted, Florida Supreme Court Case No. 70,397 (July 22, 1987). .Review granted, Florida Supreme Court Case No. 71,420 (February 17, 1988). . We also recede from anything in Wilson v. State, 515 So. 2d 254 (Fla. 5th DCA 1987) and Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987), which were decided in reliance on Poore, which may be in conflict with this opinion. . Although in Roberts, the majority interpreted the Federal Probation Act to prohibit a federal court from increasing a term of imprisonment a…
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Hoag v. State, 511 So. 2d 401 (Fla. 5th DCA 1987)…ate Judge, concur. . While attacking his convictions on appeal, the defendant did not specifically request that his sentence be vacated. Unless the defendant elects to be resentenced, he is entitled to not he resentenced. See, e.g., Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987).…
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McKINLEY v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988)…of confinement and reserving or deferring some portion of it to be imposed in the event the probation is violated. . See also Wilson v. State, 515 So. 2d 254 (Fla. 5th DCA 1987); Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987); Kelly v. State, 508 So. 2d 788 (Fla. 5th DCA 1987). . “Latent” is an understatement. The constitutional problems involved in attempting to sentence a defendant a second time after a prior valid sentence has been imposed merely because the trial court inappropriately dangles a…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. DiFRANCESCO, 449 U.S. 117 (U.S. 1980)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Pennsylvania v. Goldhammer, 474 U.S. 28 (U.S. 1985)
- Reed v. Slakan, 470 U.S. 1035 (U.S. 1985)
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)
- Dolan Robert Kelly v. State, 490 So. 2d 1383 (Fla. 5th DCA 1986)
- State v. Foster, 490 So. 2d 1383 (Fla. 5th DCA 1986)