JOHN JOSEPH BERRY, BILLY RAY WOOD AND WALTER WAYNE MCMILLIAN, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court granted certiorari and reversed the trial court's vacation of negotiated guilty pleas and sentences based on a miscalculated sentencing guidelines scoresheet, holding that once a defendant begins serving a sentence, the trial court cannot vacate it and impose a greater sentence even if the original guidelines calculation was erroneous.
Once a defendant begins serving a sentence, the trial court cannot vacate the judgment and sentence and impose a greater sentence, even if the original sentencing guidelines scoresheet was miscalculated.
[1] Once a defendant begins serving a sentence imposed pursuant to a negotiated guilty plea, the trial court may not vacate the judgment and sentence and impose a greater sen…
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Join FLexlaw to unlock all legal intelligenceThree defendants entered negotiated guilty pleas and received sentences based on a sentencing guidelines scoresheet that the prosecutor and trial cour…
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PER CURIAM.
The defendants in these consolidated cases appeal from an order of the trial court vacating and setting aside, on the state’s motion, the defendants’ negotiated guilty pleas and sentences on the grounds that the prosecutor and the trial court mistakenly believed at the time of sentencing that the guidelines scoresheet was accurate when in fact, upon discovery of the failure to score certain offenses, it was realized that the applicable guidelines range should have been greater. In addition to vacating the sentences and guilty pleas, the order further provided that the defendants stand trial on the subject charges. We treat the defendants’ consolidated appeals as petitions for certiorari and grant the same. See Jackson v. State, 527 So. 2d 845 (Fla. 1st DCA 1988).
The resolution of this case is controlled by the line of cases exemplified by Doe v. State, 492 So. 2d 842 (Fla. 1st DCA 1986) (even where the original sentence was a result of misrepresentation by the defendant — not involved in the instant case — trial court may not impose a greater sentence once defendant starts to serve original sentence). The subject order is no less erroneous because a greater sentence has not yet been imposed. The order is clearly erroneous and meets the criteria for relief via the remedy of certiorari. See State v. Pettis, 520 So. 2d 250, 254 (Fla.1988).
Certiorari granted, and cause remanded to trial court with directions to vacate the subject order and reinstate the judgments and sentences.
THOMPSON, WIGGINTON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Trotter v. State, 774 So. 2d 924 (Fla. 5th DCA 2001)…arture existed as of the time of Trotter’s original sentencing. However, in no event can the trial court increase the sentence beyond the original 83.2 month sentence because to do so would constitute a double jeopardy violation. See Berry v. State, 547 So. 2d 1273, 1274 (Fla. 1st DCA 1989) (finding that the court can not impose a greater sentence once the defendant starts to serve an original sentence); State v. Wagner, 495 So. 2d 283, 284 (Fla. 2nd DCA 1986) (stating “[sjince Wagner has commenced service of…
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Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992)…57 (Fla.1973); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984).”); Macias v. State, 572 So. 2d 22, 23 (Fla. 4th DCA 1990) (“[A]n increase of a lawful sentence is expressly prohibited by case law and constitutes double jeopardy.”); Berry v. State, 547 So. 2d 1273, 1274 (Fla. 1st DCA 1989) (“[The] court may not impose a greater sentence once [the] defendant starts to serve original sentence.”); See Madrigal v. State, 545 So. 2d 392, 395 (Fla. 3d DCA 1989) (“[T]he prosecutor had the right, and the binding duty…
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Gartrell v. State, 609 So. 2d 112 (Fla. 4th DCA 1992)…57 (Fla.1973); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984).”); Macias v. State, 572 So. 2d 22, 23 (Fla. 4th DCA 1990) (“[A]n increase of a lawful sentence is expressly prohibited by case law and constitutes double jeopardy.”); Berry v. State, 547 So. 2d 1273, 1274 (Fla. 1st DCA 1989) (“[The] court may not impose a greater sentence once [the] defendant starts to serve original sentence.”); See Madrigal v. State, 545 So. 2d 392, 395 (Fla. 3d DCA 1989) (“[T]he prosecutor had the right, and the binding duty…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pettis, 520 So. 2d 250 (Fla. 1988)
- DOE v. State, 492 So. 2d 842 (Fla. 1st DCA 1986)
- Jackson v. State, 527 So. 2d 845 (Fla. 1st DCA 1988)