EDWARD FRAZIER, ETC., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Frazier appeals his resentence following remand for recalculation of his sentencing scoresheet. The court affirms the resentence, rejecting Frazier's argument that increasing his probation from 30 to 35 years violated due process, as the overall sentence was not harsher.
The trial court did not violate due process because it did not impose a harsher or more severe overall punishment. Although probation increased by 5 years, the court reduced the imprisonment sentence on the burglary of a dwelling conviction from 15 to 12 years and modified another conviction's sentence, maintaining the total period of government supervision at 47 years.
[1] A trial court's resentencing decision does not violate due process rights under North Carolina v. …
[2] A trial court may correct clerical errors in orders of probation to accurately reflect the intended sentence.
Previewing 2 of 3 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“Contrary to the assertion of the defendant, the ruling in North Carolina v. Pearce is not implicated in the instant case because the trial court, in resentencing the defendant, did not impose a harsher or more severe punishment.”
Court's holding that due process protections against vindictive sentencing do not apply when the overall sentence is not harsher.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFrazier pleaded guilty to five counts of burglary of a structure, two counts of grand theft, and one count of burglary of a dwelling on November 21, 1…
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DANIEL, Judge.
Defendant, Edward Frazier, appeals his sentence and orders of probation for five counts of burglary of a structure, two counts of grand theft, and one count of burglary of a dwelling. On November 21, 1986, defendant entered a plea of guilty to five counts of burglary of a structure, two counts of grand theft, and one count of burglary of a dwelling. The trial court initially sentenced defendant on these charges to a term of seventeen years imprisonment followed by a term of thirty years probation. On direct appeal this court vacated defendant’s judgment of sentence based upon the finding that the trial court had improperly calculated defendant’s scoresheet and we remanded the matter to the trial court for resentencing, 515 So. 2d 1061. On remand, the trial court resentenced defendant to a term of twelve years imprisonment followed by a term of thirty-five years probation.
On appeal, defendant contends that the trial court, by increasing his total period of probation from thirty years to thirty-five years, violated his right to due process as set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and as recognized by this court in Pilgrim v. State, 516 So. 2d 75 (Fla. 5th DCA 1987) and Denholm v. State, 477 So. 2d 34 (Fla. 5th DCA 1985). Contrary to the assertion of the defendant, the ruling in North Carolina v. Pearce is not implicated in the instant case because the trial court, in resentencing the defendant, did not impose a harsher or more severe punishment. Rather, the trial court (1) reduced the sen tence on the defendant’s burglary of a dwelling conviction from fifteen years imprisonment to twelve years imprisonment; (2) vacated the defendant’s sentence of two years imprisonment on one of his burglary of a structure convictions and imposed a term of five years probation; and, (3) maintained the total period of government supervision over defendant at forty-seven years. See Blackshear v. State, 531 So. 2d 956 (Fla.1988).
Accordingly, we affirm the defendant’s sentence, but noting a disparity between the record order of probation and the judgment and sentence entered by the trial court, we direct that the orders of probation be corrected to reflect a total of thirty- ' five years of probation.
AFFIRMED and REMANDED.
DAUKSCH and COWART, JJ., concur.
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Lenthius Daryl Thomas v. State, 633 So. 2d 1122 (Fla. 5th DCA 1994)…ginally valid prison sentence of 30 years after correction of clerical error reflecting sentence of 30 months did not violate double jeopardy clause). The net result of the correction will not increase the defendant’s sentence. See Frazier v. State, 540 So. 2d 228 (Fla. 5th DCA 1989) (trial court did not violate defendant’s due process rights when upon resentencing, it decreased the defendant’s confinement by five years but increased period of probation by five years). Although defense counsel stipulated to…
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Laster v. State, 564 So. 2d 536 (Fla. 5th DCA 1990)…ight to be sentenced according to applicable law, the principle enunciated in North Carolina v. Pearce must be consulted. Blackshear v. State, 531 So. 2d 956 (Fla.1988); Wemett v. State, 547 So. 2d 955 (Fla. 1st DCA 1989). See also Frazier v. State, 540 So. 2d 228 (Fla. 5th DCA 1989); Denholm v. State, 477 So. 2d 34 (Fla. 5th DCA 1985). In North Carolina v. Pearce, the Supreme Court ruled that due process prohibits increased sentences motivated by vindictive retaliation by the sentencing court. To prevent vi…
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Tellier v. State, 807 So. 2d 155 (Fla. 5th DCA 2002)…Appeal from the Circuit Court for Marion County, William T. Swigert, Judge. AFFIRMED. See Frazier v. State, 540 So. 2d 228 (Fla. 5th DCA 1989); Buchanan v. State, 781 So. 2d 449 (Fla. 5th DCA 2001); Lawrence v. State, 801 So. 2d 293 (Fla. 2d DCA 2001). SHARP, W. and PALMER, J.J., and PERRY, B., Associate Judge, concur.…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Blackshear v. State, 531 So. 2d 956 (Fla. 1988)
- Bertley S. Pilgrim v. State, 516 So. 2d 75 (Fla. 5th DCA 1987)
- Frazier v. State, 515 So. 2d 1061 (Fla. 5th DCA 1987)
- Denholm v. State, 477 So. 2d 34 (Fla. 5th DCA 1985)