DAVID AYALA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Ayala was resentenced by the trial court to add three years' probation to his original six-month jail sentence for burglary, based on newly discovered information about violent acts and threats against the victim. The appellate court reversed, holding that a trial court cannot increase a defendant's sentence after it has been imposed and the defendant has begun serving it, absent certain exceptions not present here.
The trial court erred in resentencing Ayala to an increased term. As a general rule, once a defendant has begun to serve his sentence, a trial court may not resentence him to an increased term. The exceptions to this rule—where the defendant's own affirmative act created the error or where the defendant committed fraud upon the court—are not present here, and Ayala was entitled to expect that his sentence would not be increased.
[1] A trial court may not resentence a defendant to an increased term once the defendant has begun to serve the original sentence.
[2] A defendant has a legitimate expectation that a sentence, once imposed and commenced, will not later be enhanced, protected by the prohibition against double jeopardy.
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Join FLexlaw to unlock all legal intelligence“As a general rule, once a defendant has begun to serve his sentence, a trial court may not resentence him to an increased term.”
Establishes the fundamental legal principle governing the case.
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Join FLexlaw to unlock all legal intelligenceAyala pleaded guilty to burglary of a dwelling and petit theft. The trial court sentenced him to six months in county jail for burglary and sixty days…
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THREADGILL, Judge.
In this appeal David Ayala challenges his sentence for burglary of a dwelling. He argues that the trial court erred when it resentenced him, adding three years’ probation to his previous sentence of six months’ incarceration. We agree and reverse.
At arraignment, the appellant pleaded guilty to burglary of a dwelling and petit theft. The trial court sentenced him to six months in the county jail for burglary and sixty days’ concurrent incarceration for theft. Five days later, the state moved to have the appellant resentenced, alleging that at the time of sentencing, unknown to the state, the appellant had committed two violent acts against the victim, and the victim had been threatened if the charges were not dropped. Two weeks after the original sentencing, the state’s motion was heard. The appellant declined the trial court’s offer to withdraw his plea, but objected to any modification of the sentence. The trial court resentenced the appellant to three years’ probation for burglary, with the conditions that he serve six months in the county jail and have no contact with the victim.
The appellant argues that the trial court erred in increasing his sentence. We agree. As a general rule, once a defendant has begun to serve his sentence, a trial court may not resentence him to an increased term. See Goene v. State, 577 So. 2d 1306 (Fla.1991); Williams v. State, 553 So. 2d 729 (Fla. 2d DCA 1989); Westover v. State, 521 So. 2d 344 (Fla. 2d DCA 1988).
In Goene, the Florida Supreme Court, citing United States v. Jones, 722 F. 2d 632 (11th Cir.1983), recognized that the prohibition against double jeopardy respects a defendant’s legitimate expectation that a sentence, once imposed and commenced, will not later be enhanced. 577 So. 2d at 1308. The court went on to note that there are exceptions to the general rule under certain circumstances. For example, a defendant does not have a legitimate expectation in the finality of his sentence where his own affirmative act created the error in the original sentence, or where the defendant committed a fraud upon the court. Id. at 1308-09. Nonetheless, none of these exceptions are present in the instant case. The appellant was therefore entitled to expect that his sentence, once imposed and commenced, would not later be increased. Id. at 1308.
Accordingly, we reverse the appellant’s amended sentence as to the burglary charge, and remand for reinstatement of the original sentence.
Reversed and remanded.
SCHOONOVER, C.J., and CAMPBELL, J., concur.
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Ernie Howard Nelson v. State, 724 So. 2d 1202 (Fla. 2d DCA 1998)…tion against increasing criminal sentences, and this court has consistently disapproved the practice in a variety of contexts. See Gallup v. State, 696 So. 2d 803 (Fla. 2d DCA 1997); Coll v. State, 629 So. 2d 1056 (Fla. 2d DCA 1993); Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Westover v. State, 521 So. 2d 344 (Fla. 2d DCA 1988); Van Buren v. State, 500 So. 2d 732 (Fla. 2d DCA 1987); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984). The record discloses that Nelson’s attorney was provided one day’s…
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Sterling v. State, 682 So. 2d 694 (Fla. 5th DCA 1996)…constitutes an increase in a defendant’s sentence. Tessier v. Moe, 485 So. 2d 46 (Fla. 4th DCA 1986). The addition of a probationary term also represents an increase in a sentence. Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Bickowski v. State, 530 So. 2d 470 (Fla. 5th DCA 1988). The state argues that Sterling waived his right to object to the increase in sentence, by accepting the condition of probation. However, a party cannot stipulate to jurisdi…
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Johnson v. State, 641 So. 2d 970 (Fla. 2d DCA 1994)…orrection or clarification of these written sentences would apparently result in an increase in the sentence, we are inclined to believe that any sentence upon violation of probation should not exceed three years’ incarceration.3 See Ayala v. State, 585 So. 2d 483 (Fla. 2d DCA 1991); Stavely v. State, 473 So. 2d 748 (Fla. 1st DCA 1985), review denied, 484 So. 2d 10 (Fla.1986); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984). Nevertheless, in light of the unusual posture of this case, we do not foreclose th…
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
- Goene v. State, 577 So. 2d 1306 (Fla. 1991)
- United States v. Jones, 722 F.2d 632 (11th Cir. 1983)
- Daniels v. State, 521 So. 2d 344 (Fla. 2d DCA 1988)
- Williams v. State, 553 So. 2d 729 (Fla. 2d DCA 1989)