MARCUS MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcus Moore appealed his 48-month sentence imposed for violation of probation, challenging the trial court's oral increase from an initially announced 24-month sentence. The First District Court of Appeal affirmed, holding that a trial judge has authority to modify a sentence during the sentencing hearing before it becomes final.
A trial judge has the authority to modify, increase, decrease, or correct a sentence if the change is made during the sentencing hearing before the sentence is carried out or the defendant is incarcerated. The increase does not constitute resentencing or violate double jeopardy because the sentence is not "imposed" until the sentencing hearing concludes.
[1] A trial court may change, correct, or increase a sentence pronounced during a sentencing hearing, provided the modification occurs before the sentence is carried out or t…
[2] A sentence is not considered final or imposed until the conclusion of the sentencing hearing.
Previewing 2 of 5 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“A trial judge can change or correct a sentence if the change or correction is made at the sentencing hearing, before the sentence is carried out or the defendant is incarcerated.”
Establishes the core holding regarding judicial authority to modify sentences during sentencing hearings.
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Join FLexlaw to unlock all legal intelligenceMoore pleaded guilty to violation of probation. At sentencing, the trial judge initially announced a 24-month sentence. After being advised that Moore…
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THOMPSON, Judge.
Moore appeals a 48-month sentence imposed pursuant to his plea of guilty to a charge of violation of probation. He assigns as error the trial court’s action in orally increasing the sentence originally pronounced. We affirm.
At the sentencing hearing the judge initially announced that Moore would be sentenced to 24 months incarceration. After being advised that Moore was entitled to credit for 241 days previously served in jail, the judge increased the sentence to 48 months. This was not error. A trial judge can change or correct a sentence if the change or correction is made at the sentencing hearing, before the sentence is carried out or the defendant is incarcerated. State v. Viamari, 462 So. 2d 1154 (Fla. 2d DCA 1985); Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982); Williams v. State, 365 So. 2d 201 (Fla. 1st DCA 1978). The Farber court, citing Williams, stated:
In our view, “the pronouncement by the court of the penalty imposed upon the defendant,” that is, the sentence, see Fla.R.Crim.P. 3.700, does not occur until the pronouncement is final. The pronouncement is final, at the earliest, when the sentencing hearing comes to an end. At least until that moment arrives, the trial court has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement.
The application of this bright-line rule is not dependent on some reason to justify the change in sentence. It matters not whether the penalty earlier stated is a slip of the tongue or intentional. Whether the defendant, through counsel, has supplied incomplete information to the court leading to a more lenient sentence than would have been imposed, see Williams v. State, 365 So. 2d 201 (Fla. 1st DCA 1978), or, as here, the trial judge was simply unaware of information which,, once revealed, led him to change his mind, is irrelevant to the trial court’s authority to change the sentence. So long as the change occurs at the same sentencing hearing, for whatever reason or for none at all, it is valid....
409 So. 2d at 73. (Footnotes omitted.)
Moore contends that the increased sentence is violative of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and the double jeopardy prohibition. Both the Farber and Williams courts have ruled against this contention, the Farber court saying: Since the sentence is not “imposed” until the sentencing hearing is concluded, the increase of sentence during the sentencing hearing is not an increase of an imposed sentence or a “resentencing,” and neither double jeopardy, see Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Jones v. State, 297 So. 2d 93 (Fla. 2d DCA 1974), nor Florida Rule of Criminal Procedure 3.800 is a bar to the increase.
409 So. 2d at 73.
Moore also contends that the trial court erred in imposing a guidelines departure sentence without giving a contemporaneous written reason justifying departure. The trial judge stated on the record at the sentencing hearing that Moore’s status as a probation violator would justify a departure from the guidelines. The presentence investigation report also noted that the court would not be bound to follow the guidelines inasmuch as the defendant was guilty of a second violation of probation. The sentencing guidelines scoresheet bears a notation that this was a second violation of probation and that “guidelines do not apply.” The reason for deviating from the guidelines was reduced to writing and filed within ten days of the sentencing hearing. Even if this were found to not be contemporaneous, the fact would remain that Moore was fully advised of the reason for departure and was not deprived of his right to object to the reason given. The error, if any, was therefore harmless. Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988).
The sentence imposed is AFFIRMED.
WENTWORTH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Whitehead v. State, 21 So. 3d 157 (Fla. 4th DCA 2009)…done at the same sentencing hearing, before the defendant has commenced serving his sentence. [*161] See Curtis v. State, 789 So. 2d 394, 395-96 (Fla. 4th DCA 2001); see also Chaney v. State, 617 So. 2d 844, 845 (Fla. 4th DCA 1993); Moore v. State, 538 So. 2d 123, 124 (Fla. 1st DCA 1989). Until the sentencing hearing comes to an end, “the trial court has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement.” Farber v. Stat…
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Walker v. State, 555 So. 2d 1221 (Fla. 1st DCA 1989)…ts. Thus, this court has held that delays longer than the eight days involved in the instant case constituted harmless error provided the defendant was adequately apprised of the trial court’s reasons for departure at sentencing. See Moore v. State, 538 So. 2d 123 (Fla. 1st DCA 1989) (a ten day delay); Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988) (a delay of nearly one month). Even if the eight day delay was outside the bounds of contemporaneity, the transcript of the sentencing hearing indicates tha…
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Williams v. State, 607 So. 2d 478 (Fla. 1st DCA 1992)…table for a trial court to orally apprise a defendant of the reason(s) for an upward departure sentence and, within a reasonable time thereafter, reduce those reasons to writing. Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988); Moore v. State, 538 So. 2d 123 (Fla. 1st DCA 1989).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)
- Williams v. State, 531 So. 2d 212 (Fla. 1st DCA 1988)
- Abreau v. State, 365 So. 2d 201 (Fla. 3d DCA 1978)
- Jones v. State, 297 So. 2d 93 (Fla. 2d DCA 1974)
- State v. Viamari, 462 So. 2d 1154 (Fla. 2d DCA 1984)