PATRICK JOSEPH MORGANTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Morganti appeals his resentencing on a probation violation, challenging the imposition of a fine and probation term for the first time on resentencing. The Fourth District Court of Appeal affirms the sentence but certifies a constitutional question to the Florida Supreme Court regarding whether such fines constitute impermissible sentence enhancements.
The court held that imposing a fine for the first time upon resentencing does not constitute an abuse of discretion or an unconstitutional penalty under North Carolina v. Pearce, and that probation may be lawfully imposed without defendant consent as part of the guideline sentencing scheme.
[1] Imposing a fine for the first time upon resentencing, after a defendant has rejected a previously imposed longer term of incarceration, does not constitute an abuse of di…
[2] A trial court may lawfully impose a term of probation over a defendant's objection, even if the defendant prefers a fixed period of incarceration.
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“The imposition of a fine for the first time upon a resentencing, where the defendant has rejected a previously imposed longer term of incarceration, does not constitute an abuse of discretion, nor is it an unconstitutional penalty, forbidden under North Carolina v. Pearce”
Establishes the core holding that reimposing fines on resentencing is constitutionally permissible
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMorganti was resentenced following a probation violation. The prior sentences of thirty and fifteen years had been reversed on two previous appeals. T…
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STONE, Judge.
This is a third appeal from sentences imposed following a violation of probation. The previously reversed sentences were for thirty and fifteen years incarceration. Morganti v. State, 498 So. 2d 557 (Fla. 4th DCA 1986), approved, 509 So. 2d 929 (1987); Morganti v. State, 524 So. 2d 641 (Fla.1988). Here, the sentence was a term of five and one-half years (5V2) in prison and a ten thousand dollar ($10,000) fine followed by eighteen (18) months additional probation. Appellant was also directed to pay the fine as a condition of probation. The presumptive guideline sentencing range is 5V2 to 7 years.
The appellant contests the imposition of a fine for the first time upon resentencing, contending that it constitutes an impermissible enhancement of his sentence. Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976). He also contends that the trial court may not impose a term of probation over the defendant’s objection. See Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974); Dearth v. State, 390 So. 2d 108 (Fla. 4th DCA 1980).
The imposition of a fine for the first time upon a resentencing, where the defendant has rejected a previously imposed longer term of incarceration, does not constitute an abuse of discretion, nor is it an unconstitutional penalty, forbidden under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969). Cf. Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987). We also considered Lambert v. State, 545 So. 2d 838 (Fla.1989) and Scott v. State, 550 So. 2d 111 (Fla. 4th DCA 1989) and deem them inapposite. We note that the record is silent as to why the fine was not initially imposed. However, it is not unreasonable to consider that this was related to the length of the initial terms of incarceration and the fact that the initial longer sentences were not coupled with a successive period of probation. Additionally, the imposition of the fine is not a deviation from the sentencing guidelines. Cf. Whiteman v. State, 465 So. 2d 591 (Fla. 2d DCA 1985).
The probation portion of the sentence imposed was a lawful sentence. Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989); Evans v. State, 544 So. 2d 1160 (Fla. 5th DCA 1989). We have considered Brown v. State and Dearth v. State and do not read these cases to require that the consent of a defendant be obtained as a prerequisite to a term of probation rather than a fixed period of incarceration. We also note that those cases predated the sentencing guidelines and therefore did not consider the role that probation and successive probation may now play in the guideline sentencing scheme.
The judgment and sentence are affirmed. However, we certify the following question to the supreme court:
WHETHER THE IMPOSITION OF A FINE FOR THE FIRST TIME ON A RESENTENCING MUST CONSTITUTE AN UNCONSTITUTIONAL ENHANCEMENT OF SENTENCE.
WALDEN, J., concurs.
LETTS, J., dissents with opinion.
LETTS, Judge,
dissenting in part.
I concur with the majority that a defendant does not have the right to reject probation and elect incarceration. However, I agree with the defendant that the $10,000 fine constituted an enhanced sentence. When we, for the second time, remanded this case for resentencing within the guidelines (Morganti v. State, 510 So. 2d 1182 (Fla. 4th DCA 1987), rev’d, 524 So. 2d 641 (Fla.1988)), the trial judge complied in all respects except that he tacked on a $10,000 fine. The state cites several cases which have held that a fine is not an impermissible enhancement. However, the Supreme Court of Florida has not yet ruled on this issue in the context of resentencing.
The guidelines do not address the question of fines and, therefore, to impose them may not legally constitute either a departure or an enhancement. However, the assessment of a $10,000 fine, for the first time upon remand for resentencing, would feel very much like an enhancement to me, were I on the receiving end thereof. I notice that a problem, somewhat similar to the one now before us, appeared in the case of Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987).1 In that case, the district court certified a question, the answer to which might have controlled the outcome here. However, the supreme court was never called on to answer that question. I am glad the majority has agreed to certify the question.
. See also Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988), especially the dissent by T. Zehmer, with which I agree.
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Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990)…ess rights as long as the sentence for the surviving offense is no greater than the combined original sentences imposed for it and the lesser offenses it subsumed. See Baggett v. State, 302 So. 2d 206 (Fla. 2d DCA 1974).3 Compare Mor-ganti v. State, 557 So. 2d 593 (Fla. 4th DCA 1990). DOUBLE JEOPARDY: RICO The issue here is whether the appellant engaged in more than one “pattern of racketeering activity” under the Florida Racketeer Influenced and Corrupt Organizations Act (RICO), chapter 895, Florida Statut…
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Morganti v. State, 573 So. 2d 820 (Fla. 1991)…OVERTON, Justice. Patrick Joseph Morganti seeks review of Morganti v. State, 557 So. 2d 593 (Fla. 4th DCA 1990), in which the Fourth District Court of Appeal approved a resentencing which was within the sentencing guidelines, but which imposed for the first time a $10,000 fine. The district court of appeal certified the following question:…
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Corlie Causey v. State, 623 So. 2d 617 (Fla. 4th DCA 1993)…So. 2d 998 (Fla. 4th DCA 1983). The state has submitted no authority indicating that a defendant must agree to all of the terms of a probation order. We note that chapter 948, Florida Statutes, contains no such provision. See also Morganti v. State, 557 So. 2d 593 (Fla. 4th DCA 1990), approved, 573 So. 2d 820 (Fla.1991). We affirm as to the other issues raised. We find no error or abuse of discretion in the trial court’s denial of Appellant’s motion to suppress the contents of a pill bottle found in the cou…
Authorities Cited (18 total)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974)
- Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976)
- Dudley Scott v. State, 550 So. 2d 111 (Fla. 4th DCA 1989)
- Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989)
- Johnson v. State, 502 So. 2d 1291 (Fla. 1st DCA 1987)
- Dearth v. State, 390 So. 2d 108 (Fla. 4th DCA 1980)
- Morganti v. State, 498 So. 2d 557 (Fla. 4th DCA 1986)
- Schomers v. State, 528 So. 2d 1347 (Fla. 2d DCA 1988)