MARIO ANTONIO COLL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot increase a legal sentence after it has commenced, as doing so violates double jeopardy principles.
The appellant was initially sentenced to five years for aggravated assault, but the trial court resentenced him the next day to ten years. The appella…
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DANAHY, Acting Chief Judge.
The appellant challenges the constitutionality of an upward change in his sentence made by the trial court one day after sentence was originally imposed, and he also argues that the trial court should have granted his motion to suppress the evidence against him. We agree with the appellant on the first point but affirm on the second point.
A jury found the appellant guilty of aggravated assault. On January 27,1992, the trial court sentenced the appellant to a period of five years’ incarceration, with a three-year minimum mandatory sentence, as a habitual felony offender. This sentence was to run consecutively to a ten-year sentence as a habitual felony offender on an offense underlying a probationary term which the appellant was found to have violated and which was revoked.
On January 28, 1992, the trial court resen-tenced the appellant for the offense of aggravated assault to a period of ten years’ incarceration, with-a three-year minimum mandatory sentence, as a habitual felony offender consecutive to a term of four-and-one-half years’ incarceration on the offense underlying the probationary term.
The appellant is correct that the trial court could not increase the appellant’s sentence on the current offense, aggravated assault, from five years to ten years. That is a clear violation of double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). A tidal court may not increase a legal sentence after it has commenced. Accordingly, we reverse the sentence on the offense of aggravated assault with instructions to reinstitute the original sentence of five years’ incarceration, with a three-year minimum mandatory sentence, as a habitual felony offender. Affirmed in part and reversed in part.
HALL and PATTERSON, JJ., concur.
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Ernie Howard Nelson v. State, 724 So. 2d 1202 (Fla. 2d DCA 1998)…e is nothing novel about the constitutional proscription 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 discl…
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Thomas v. State, 648 So. 2d 298 (Fla. 5th DCA 1995)…State, 439 So. 2d 998 (Fla. 4th DCA 1983). Such resentencing is violative of a defendant’s constitutional guarantee against double jeopardy. Key v. State, 638 So. 2d 1040 (Fla. 1st DCA 1994); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Coll v. State, 629 So. 2d 1056 (Fla. 2d DCA 1993); Gartrell v. State, 609 So. 2d 112 (Fla. 4th DCA 1992), rev. granted, 618 So. 2d 1368 (Fla.), approved in part; quashed in part on other grounds, 626 So. 2d 1364 (Fla. 1993); Colvin v. State, 549 So. 2d 1137 (Fla. 3d DCA 1989); De…
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Joslin v. State, 826 So. 2d 324 (Fla. 2d DCA 2002)…nt from receiving a punishment greater than the sentence already imposed. See Troupe v. Rowe, 283 So. 2d 857, 860 (Fla.1973) (“Jeopardy had attached ... and the sentence which had been imposed could not thereafter be increased.... ”); Coll v. State, 629 So. 2d 1056, 1056 (Fla. 2d DCA 1993). Thus, when a court accepts a defendant’s plea, but postpones sentencing until the defendant returns on an appointed date, jeopardy attaches only to the plea. If the defendant fails to report for sentencing as agreed, the co…
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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)