JORGE LUIS GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court reversed a resentencing that increased the defendant's sentence from two years to five and a half years after he had begun serving the original sentence, holding that such an increase violates double jeopardy protections regardless of the prosecution's mistaken miscalculation of sentencing guidelines.
A defendant cannot constitutionally be resentenced to a greater term of imprisonment after commencing service of an original jurisdictionally permissible sentence, even when the prosecution's error in recommending the lower sentence resulted from an innocent mistake in calculating guidelines.
[1] A defendant's double jeopardy rights are violated when a court increases a sentence after the defendant has commenced serving the original, lawful sentence.
[2] A prosecution's unilateral mistake in recommending or concurring in a sentence does not justify resentencing a defendant to a greater term after service of the original s…
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Join FLexlaw to unlock all legal intelligence“It is entirely clear that the resentencing to a greater term after the entry of a jurisdictionally permissible sentence which the defendant had commenced to serve was unequivocally a violation of his double jeopardy rights — one which cannot constitutionally be justified by the prosecution's simple unilateral mistake in recommending and concurring in the sentence.”
Establishes the core holding that resentencing to a greater sentence after service has begun violates double jeopardy regardless of prosecutorial error
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Join FLexlaw to unlock all legal intelligenceGonzalez was charged with violation of probation and purchasing cocaine within 1000 feet of a school. The state recommended a two and a half year sent…
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SCHWARTZ, Chief Judge.
Gonzalez was charged with violation of probation and purchasing cocaine within 1000 feet of a school. The state offered to recommend a two and one-half year sentence — less than the three year minimum mandatory required by section 893.-13(l)(e)l, Florida Statutes (1989) — in return for a guilty plea. The trial court then proposed a two year sentence, with which the state concurred and which was accepted by Gonzalez. He was thereupon duly adjudicated and sentenced to two years. The next day, however, after he had begun to serve the sentence, the state moved to vacate the sentence on the sole ground that it had agreed to the sentence only under the mistaken belief that it was in the applicable guidelines range, when in fact Gonzalez fell within a higher range.1 Although stating that the admitted error “was a mistake and not a situation where anybody' deliberately attempted to mislead the Court ... ”, the trial judge granted the motion to vacate the adjudication and sentence.2 The defendant then pled nolo contendere but was this time sentenced to five and a half years — which was within the objectively correct guidelines — subject to the statutory three year minimum mandatory requirement.
It is entirely clear that the resentencing to a greater term after the entry of a jurisdictionally permissible sentence which the defendant had commenced to serve was unequivocally a violation of his double jeopardy rights — one which cannot constitutionally be justified by the prosecution’s simple unilateral mistake in recommending and concurring in the sentence. Troupe v. Rowe, 283 So. 2d 857, 860 (Fla.1973) (“Jeopardy had attached in petitioner’s case and sentence which had been imposed could not thereafter be increased (as the second assistant state attorney’s position would do) in violation of defendant’s constitutional guaranty not be twice placed in jeopardy.”); State v. Wagner, 495 So. 2d 283, 284 (Fla. 2d DCA 1986) (“[Sjince Wagner has commenced service of his sentence, he may not be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (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 if Madrigal complied, to recommend a sentence less than that provided by section 893.135(l)(b)(2)), Florida Statutes (1985).”); State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985) (state agreement justifies downward departure); State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987) (same), review denied, 519 So. 2d 988 (Fla.1987).
Accordingly, the “second” sentence is reversed and the cause remanded with directions to resentence Gonzalez forthwith to the two year term originally imposed, with credit for the time served in the interim.
No motion for rehearing will be considered and the mandate will issue instanter. Reversed, remanded with directions.
. As it developed, the assistant state attorney had simply mistakenly translated Gonzalez’s point total into the wrong, lower range.
. This court’s denial of Gonzalez’s application for review of this order, see Gonzalez v. Shapiro, 574 So. 2d 1193 (Fla. 3d DCA 1991), has nothing to do with the issue now before us, which is the permissibility of the subsequent resentencing to a greater term than that originally imposed.
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Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996)…tencing a defendant to an habitual offender term of imprisonment subsequent to the entry of a jurisdictionally permissible term is unequivocally a violation of double jeopardy rights which cannot be constitutionally justified. See Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). It is clear that once sentence is imposed, jeopardy attaches, and appellant cannot be resentenced to a greater term of imprisonment. Such a sentence would constitute double jeopardy. Id.…
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Gartrell v. State, 609 So. 2d 112 (Fla. 4th DCA 1992)…nswer is attractive but imperfect. The state having foresworn its obvious remedy of appeal in this case, the issue is whether it could then use rule 3.800(a) to accomplish the same end. The answer to that question is contained in Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992). There the defendant was sentenced under a plea agreement with the state to a two-year term, which was less than a statutory minimum mandatory term. On the day after sentencing, the state filed a motion to vacate the sentence on t…1 / 2
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Hudson v. State, 682 So. 2d 657 (Fla. 3d DCA 1996)…judge had resen-tenced the defendant to a greater term of imprisonment subsequent to the entry of a jurisdictionally permissible term, it would have constituted double jeopardy. Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996); Gonzalez v. State, 596 So. 2d 711 (Fla. 3d DCA 1992). Affirmed. . We know of no authority for the Department of Corrections to add additional conditions to a sentence. This is a court function. See Slay v. Singletary, 676 So. 2d 456 (Fla. 1st DCA 1996); Thomas v. State, 612 So. 2d…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Domingo Antonio Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989)
- State v. Collins, 482 So. 2d 388 (Fla. 5th DCA 1985)
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- State v. Devine, 512 So. 2d 1163 (Fla. 4th DCA 1987)
- MacIas v. State, 572 So. 2d 22 (Fla. 4th DCA 1990)
- Berry v. State, 547 So. 2d 1273 (Fla. 1st DCA 1989)
- State v. Wagner, 495 So. 2d 283 (Fla. 2d DCA 1986)
- Gonzalez v. The Honorable Sidney B. Shapiro, 574 So. 2d 1193 (Fla. 3d DCA 1991)