JOSE ANGEL ALFONSO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alfonso was retried for murder following reversal of his initial conviction. After his second-degree murder conviction on retrial, the sentencing court changed previously concurrent sentences for armed burglary and shooting into an occupied building to run consecutively with the new life sentence. The appellate court vacated the consecutive sentencing change, finding it violated due process rights by effectively punishing the defendant for exercising his right to a new trial.
The court vacated the portion of the resentencing order that changed the two fifteen-year sentences from concurrent to consecutive to the life sentence, directing those convictions be reimposed to run concurrent to the life sentence. The change from concurrent to consecutive sentencing following retrial violated defendant's due process rights under the Fifth and Fourteenth Amendments and the Florida Constitution.
[1] A defendant's due process rights are violated when a sentence is enhanced following a retrial after the defendant successfully appealed a prior conviction.
[2] Sentences previously affirmed on appeal must run concurrent to a new sentence imposed after a successful appeal and subsequent retrial, unless the enhancement is justifie…
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Join FLexlaw to unlock all legal intelligence“The change from concurrent to consecutive sentencing following retrial violated defendant's right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Florida Constitution.”
Establishes the core holding that changing sentencing structure following retrial violates due process rights.
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Join FLexlaw to unlock all legal intelligenceAlfonso was initially convicted of first-degree murder and sentenced, along with concurrent fifteen-year sentences for armed burglary and shooting int…
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PER CURIAM.
On appeal from the first trial in this case, this court reversed defendant’s conviction for first-degree murder and affirmed the judgments of conviction and the two concurrent fifteen-year sentences imposed for armed burglary and shooting into an occupied building. Alfonso v. State, 528 So. 2d 383 (Fla. 3d DCA), review denied, 528 So. 2d 1183 (Fla.1988).
Upon retrial, defendant was convicted of second-degree murder. The second trial court judge resen-tenced defendant to life imprisonment for that offense. The court then ordered that defendant’s previously affirmed fifteen year concurrent sentences for the offenses of armed burglary and shooting into an occupied dwelling run consecutively to the new departure sentence of life imprisonment for second-degree murder. We vacate that part of the resentencing which orders that the two fifteen-year sentences run consecutively to the sentence for second-degree murder, and we direct that those convictions be reimposed to run concurrent to the life sentence. The change from concurrent to consecutive sentencing following retrial violated defendant’s right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Florida Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (due process clause of the United States Constitution is offended if an enhancement sentence punishes the defendant for the exercise of rights guaranteed him); see Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982).
Finding no merit to the other issues raised, we affirm the convictions and sentence appealed in all other respects.
PER CURIAM.
The appellant’s petition for rehearing reminds us that we failed to consider and address his claim that there was insufficient emotional or psychological trauma to enhance the second-degree murder conviction to life in prison.
The trial court entered an upward departure from the sentencing guidelines reasoning, “The murder was committed twelve inches away from the victim’s wife” resulting in “horrendous lasting trauma and damage to the emotional balance of the victim’s wife.”
A reading of the record shows that during the wife’s testimony, facts proving the emotional trauma suffered by the wife were established beyond a reasonable doubt. Casteel v. State, 498 So. 2d 1249 (Fla.1986); State v. Mischler, 488 So. 2d 523 (Fla.1986). See and compare Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987) (record contained no evidence to prove beyond a reasonable doubt that victims’ family members suffered psychological trauma from witnessing the crime; blanket assertion to that effect by trial judge insufficient to support upward departure); Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987) (evidence insufficient to establish that more than one family member saw shooting; no testimony going to the question of the witness’ emotional trauma; thus no facts to support trial court’s reason for upward departure).
Accordingly, the motion for rehearing is denied.
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Alfraedo Williams v. State, 686 So. 2d 615 (Fla. 2d DCA 1996)…inal sentencing goal of imposing a life sentence, as in Colwell v. State, 471 So. 2d 1374 (Fla. 5th DCA 1985). But this argument is invalid because the legal basis for the imposition of a life sentence no longer exists. Here, as in Alfonso v. State, 561 So. 2d 1207 (Fla. 3d DCA), review denied, 576 So. 2d 284 (1990), the change from concurrent to consecutive sentencing violated the appellant’s right to due process of law. Thus, we reverse and remand for the trial court to impose a concurrent sentence on Count…
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Earnest Somerville, Jr. v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993)…applicable law. The judge sentenced Somerville on both charges on the same day as part of a single brief sentencing hearing. Nothing new has arisen since the trial judge sentenced appellant to the concurrent sentences. The court in Alfonso v. State, 561 So. 2d 1207, 1208 (Fla. 3d DCA 1990), rev. denied, 576 So. 2d 284 (Fla.1990), held “[t]he change from concurrent to consecutive sentencing following retrial violated defendant’s right to due process of law under the Fifth and Fourteenth Amendments to the United…
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Kopko v. State, 709 So. 2d 159 (Fla. 5th DCA 1998)…rom concurrent to consecutive sentencing violates North Carolina v. Pearce. Gilliam (life sentence for sexual battery consecutive to death penalty for murder was more severe than concurrent life sentence imposed after first trial); Alfonso v. State, 561 So. 2d 1207 (Fla. 3d DCA), rev. denied, 576 So. 2d 284 (Fla.1990) (trial court’s resentence of defendant changing 15 year concurrent sentences to consecutive sentences violated North Carolina v. Pearce). No such rationale or reasons appear in this record. Thus…
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
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Casteel v. State, 498 So. 2d 1249 (Fla. 1986)
- Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982)
- Ortagus v. State, 500 So. 2d 1367 (Fla. 1st DCA 1987)
- Jose Angel "Pepe" Alfonso and Javier Codecido v. State, 528 So. 2d 383 (Fla. 3d DCA 1988)
- Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987)