JAMES HARRISON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harrison was convicted of second-degree murder, burglary, and attempted robbery in connection with an armed supermarket robbery where a night watchman was killed. After serving his two-year prison sentence for murder, he violated probation by possessing cocaine, and the trial court improperly resentenced him to 22 years by treating the murder conviction as the primary offense rather than a prior conviction, violating double jeopardy principles.
The court held that Harrison's murder conviction could not be resentenced as the primary offense because he had already completed his original sentence, which would violate double jeopardy principles. The murder conviction must be treated only as a prior offense in the guidelines calculation, with burglary treated as the primary offense. Additionally, no additional points should be scored for victim injury to avoid double-dipping, as the death was already the subject of the murder conviction and imprisonment.
[1] Resentencing a defendant for a charge for which the original sentence has been fully served constitutes double jeopardy.
[2] A prior conviction used for sentencing enhancement purposes cannot also be the basis for scoring additional points for victim injury.
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Join FLexlaw to unlock all legal intelligence“Since the defendant had completely served the sentence actually imposed for second degree murder, it is an obvious double jeopardy violation to resentence him as to that charge.”
Establishes the core double jeopardy principle preventing resentencing on a charge for which the defendant has already served the sentence.
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Join FLexlaw to unlock all legal intelligenceIn 1984, Harrison served as a lookout during an armed supermarket robbery in which two co-defendants killed a night watchman without Harrison's knowle…
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SCHWARTZ, Chief Judge.
In 1984, the appellant Harrison was a lookout in an armed supermarket robbery in which, unknown to him, two co-defendants killed a night watchman. As a result, Harrison pled guilty to second degree murder (Count I), burglary of an occupied structure with an assault committed therein (Count II), and attempted robbery with a deadly weapon (Count III). He was sentenced to two years in prison as to Count I, followed by concurrent terms of four years probation on Counts II and III. He served his two year state prison time, but shortly after his release he was found in possession of cocaine which, in the instant case, the trial court determined to have been a violation of his probation. His sentencing upon the consequent revocation is the only issue involved in this appeal.
Acting under the misapprehension that the original sentence for the second degree murder count had been two years imprisonment followed by four years probation and thus that Harrison was on probation for that charge at the time of sentencing, the trial court treated the second degree murder as the primary offense under the guidelines. That calculation yielded a recommendation of 12-17 years with a probation uptick to 17-22 years. Accordingly, it imposed three sentences on Counts I, II and III totalling 22 years in the state prison. As the state concedes, we must reverse.
Since the defendant had completely served the sentence actually imposed for second degree murder, it is an obvious double jeopardy violation to resentence him as to that charge. 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). The murder conviction must instead be treated only as a prior offense in the guidelines calculation, see Peterson v. State, 506 So. 2d 94 (Fla. 2d DCA 1987), which in turn, must be based upon the guidelines in effect at the time of the offense, Miller v. Florida, — U.S.-, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), with the burglary charge treated as the primary offense.
In making that computation, we hold that no additional points should be scored for victim injury. This is because the “injury” — the death of the watchman which constituted the assault involved in the burglary offense — has already been the subject of Harrison’s conviction and imprisonment for second degree murder, a crime for which points are to be scored in the prior conviction category. See Peterson, 506 So. 2d at 96; Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985). Double or triple dipping of this kind is not permitted under the guidelines scheme. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
The state finally argues that we should permit the trial court, if it deems appropriate after remand, to deviate upward from the necessarily lower guidelines sentence which will result from this opinion. We do not agree. The thrust, if not the precise holding, of Shull v. Dugger, 515 So. 2d 748 (Fla.1987), precludes what would be an initial attempt to enter a departure sentence after a prior sentence has, as we do here, been deemed inappropriate on appeal.
The convictions below are affirmed. The sentence under review is reversed with directions to resentence Harrison under the guidelines as calculated in a manner consistent with this opinion.
Affirmed in part, reversed in part.
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State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)…be set forth in writing under the Youthful Offender Act, section 958.04(3), Florida Statutes (1987). The district court remanded the case to the trial court for resentencing within the guidelines, relying on its prior decision in Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988). Although we agree with the Third District Court of Appeal that Betancourt’s original sentence must be characterized as a departure sentence, see State v. Mestas, 507 So. 2d 587 (Fla.1987), we disagree with the district court’s…
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Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)…no departure was allowed in a resentencing when the trial judge did not originally depart and the resentencing was due to an improper calculation of the sentencing guidelines score-sheet. The district court certified conflict with Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed, we approve the instant district court decision and disapprove Harrison, The material facts reflect that Doyal Powell Roberts was convicted in 1985 o…1 / 3
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State v. Vanhorn, 561 So. 2d 584 (Fla. 1990)…s brought with the defendant adding a heightened degree of premeditation. The court would depart for any of the above reasons independent of the others. Vanhorn again appealed to the Third District Court. Based on its decision in Harrison v. State, 523 So. 2d 726 (Fla. 3rd DCA 1988), the district court reversed the departure sentence and remanded for imposition of a guidelines sentence. As Vanhorn now acknowledges, this Court subsequently has disapproved the Third District Court’s Harrison opinion. Roberts…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Reed v. Slakan, 470 U.S. 1035 (U.S. 1985)
- Fasenmyer v. State, 457 So. 2d 1361 (Fla. 1984)
- Olympian W. Condo. Ass'n, Inc. v. Olympian W., Inc., 474 So. 2d 346 (Fla. 3d DCA 1985)
- Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985)
- State v. Enso Lillo, 506 So. 2d 94 (Fla. 2d DCA 1987)
- Peterson v. State, 506 So. 2d 94 (Fla. 2d DCA 1987)