ANDRE GILMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Gilmore challenged the revocation of his community control sentence after his release from prison. The court addressed whether the trial court properly revoked his community control based on a lesser-included offense and whether the court could modify a legally-imposed sentence after discovering it would result in immediate release.
The court affirmed the revocation of community control, finding no error in the trial court taking judicial notice of the battery plea. However, the court reversed the modification of the sentence, holding that once a legal sentence is pronounced, it cannot be subsequently enhanced without statutory authority, even if the original sentence produced an unintended outcome.
[1] A trial court may take judicial notice of a guilty plea to a lesser included offense when revoking community control.
[2] A written order of revocation must conform to the trial court's oral pronouncements.
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Join FLexlaw to unlock all legal intelligence“There is no provision in the Rules of Criminal Procedure for the subsequent enhancement of a legal sentence.”
The court's principal holding that a trial court cannot modify a legal sentence after pronouncement to increase the defendant's punishment, regardless of the trial court's intent.
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Join FLexlaw to unlock all legal intelligenceGilmore was adjudicated guilty of manslaughter and unarmed robbery in 1984 and sentenced as a youthful offender to three years in prison followed by t…
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RYDER, Acting Chief Judge.
In 1984, appellant was adjudicated guilty of manslaughter and unarmed robbery. He was sentenced as a youthful offender to three years’ incarceration to be followed by two years’ community control. He was released from prison in January 1986. In July of the same year, he was charged with violating his community control. The violation affidavit filed alleged that appellant did not file his monthly reports, did not pay his costs of supervision and that appellant committed the offense of lewd and lascivious assault on a minor. At a revocation hearing, the trial court found appellant (1) had failed to file monthly reports, (2) did not have the ability to pay costs and (3) had pleaded guilty to a misdemeanor battery on the assault charge. The trial court ordered appellant’s community control revoked and sentenced him to eighteen months in prison with credit for time served.
A few weeks after sentencing, the trial court was informed that the sentence imposed upon appellant would result in his immediate release because credit for time served was much greater than the eighteen-month sentence imposed. The trial court thereupon modified the sentence, giving appellant credit for only the time served since the October 1986 arrest for the violation of community control.
Appellant raises two issues on appeal. First, he argues that the trial court erred in revoking his community control because he was not charged with violating his community control by committing a battery. The battery was a lesser included offense of the assault, with which he was charged. We find no error in the trial court taking judicial notice of the battery plea. We affirm the trial court’s oral pronouncement of the order of revocation. Appellant correctly points out that the written order does not conform with the trial court’s oral pronouncements. See generally Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985). Accordingly, we remand the cause with instructions that the trial court conform the written order to its oral pronouncements.
Appellant next argues that once the trial court pronounced sentence, it could not modify the sentence unless it was illegal or unless it was reduced. The state answers that the court can modify an improper sentence and that the modification did not increase appellant’s sentence. Appellant is correct on this point.
Even though the trial court’s original sentence may not have resulted in the outcome the trial court intended, it was still a legal sentence. The modified sentence would send appellant to prison. The original sentence would have set him free. The modification was clearly an enhancement. “There is no provision in the Rules of Criminal Procedure for the subsequent enhancement of a legal sentence.” Royal v. State, 389 So. 2d 696, 697 (Fla. 2d DCA 1980). See also Hinton v. State, 446 So. 2d 712, 713, n. 1 (Fla. 2d DCA 1984). We reverse the trial court’s modification of appellant’s sentence and remand for reinstatement of the sentence pronounced on December 17, 1986.
Affirmed in part; reversed in part and remanded with instructions.
CAMPBELL and THREADGILL, JJ., concur.
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Linton v. State, 702 So. 2d 236 (Fla. 2d DCA 1997)…Not only had the sixty-day jurisdictional limit passed, but the rescinding of previously awarded jail credit is an enhancement of appellant’s sentence for which there is no provision in the Florida Rules of Criminal Procedure. See Gilmore v. State, 523 So. 2d 1244 (Fla. 2d DCA 1988). Furthermore, the enhancement of a sentence after its initial imposition violates the prohibition against double jeopardy. See Lipp [*237] man v. State, 683 So. 2d 1061 (Fla.1994) (double jeopardy protection against multiple punis…
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Gallinat v. State, 941 So. 2d 1237 (Fla. 5th DCA 2006)…ding that a trial court can never correct an erroneous award of too much jail credit on the theory that this increases the sentence in violation of the prohibition against double jeopardy. The Second District announced this rule in Gilmore v. State, 523 So. 2d 1244 (Fla. 2d DCA 1988), and has followed it consistently. See King v. State, 913 So. 2d 758 (Fla. 2d DCA 2005); Lebron v. State, 870 So. 2d 165 (Fla. 2d DCA 2004); Platt v. State, 827 So. 2d 1064 (Fla. 2d DCA 2002); Keene v. State, 826 So. 2d 327 (Fla.…1 / 2
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Thomas v. State, 648 So. 2d 298 (Fla. 5th DCA 1995)…encing error below and on direct appeal resulted in a waiver of that issue. As appellant correctly contends, the Florida Rules of Criminal Procedure do not contain a provision for the subsequent enhancement of a legal sentence. See Gilmore v. State, 523 So. 2d 1244 (Fla. 2d DCA 1988); Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983). Such resentencing is violative of a defendant’s constitutional guarantee against double jeopardy. Key v. State, 638 So. 2d 1040 (Fla. 1st DCA 1994); Troupe v. Rowe, 283 So. 2d…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980)
- Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985)