LARRY COLEMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1994-11-23
No. 94-943
Before HUBBART, GERSTEN and GREEN, JJ.
645 So. 2d 176 Florida District Court of Appeal, Third District (1994) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Larry Coleman appeals his convictions for battery on a law enforcement officer, resisting an officer with violence, corruption by threat, and escape. The appellate court affirmed the convictions but reversed the sentences, finding that the trial court violated Coleman's double jeopardy rights by imposing an initial 20-year sentence and then subsequently increasing it to 25 years after declaring him a habitual felony offender.


Holding

The court rejected Coleman's claim that he was denied his right to present witnesses, finding the trial court did not abuse its discretion in proceeding without the absent defense witnesses. However, the court agreed with Coleman that the trial court violated his double jeopardy rights by imposing an initial 20-year sentence and subsequently increasing it to 25 years through a second sentencing hearing.


Headnotes

[1] A trial court does not abuse its discretion by proceeding to trial without defense witnesses when the defense counsel received reasonable notice of the trial and failed t…

[2] A trial court loses jurisdiction to modify a sentence after it has been imposed and the defendant has begun serving it.

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Key Quotes

“the trial court lost jurisdiction over the defendant after having imposed the prior sentences totalling twenty-years imprisonment, and the trial court's subsequent effort to aggravate the prior sentence by increasing the number of years of imprisonment and declaring the defendant a habitual felony offender violated the defendant's constitutional guarantee against double jeopardy”

Establishes the core holding that the trial court violated double jeopardy protections by imposing a sentence and then increasing it in a subsequent hearing

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Facts & Procedural History

Coleman was convicted by jury of battery on a law enforcement officer, resisting an officer with violence, two counts of corruption by threat against …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the defendant Larry Coleman from judgments of conviction for (1) battery on a law enforcement officer [§ 784.07(2)(b), Fla.Stat. (1993) ], (2) resisting an officer with violence [§ 843.01, Fla.Stat. (1993) ], (3) two counts of corruption by threat against a public servant [§ 838.021, Fla.Stat. (1993)], and (4) escape [§ 944.40, Fla.Stat. (1993)], entered upon an adverse jury verdict, and sentences totaling twenty-five (25) years in the state penitentiary, to wit: ten years on count (1); five years on counts (2)-(4), to run consecutively with the sentence on count (1); and ten years on count (5) to run concurrently with the other counts. We affirm the judgments of conviction, but reverse the sentences.

First, there is no merit to the defendant’s argument that the defendant was denied his right to present witnesses in his defense at the trial below. The defense counsel was given reasonable notice of the trial sufficient to subpoena any defense witnesses to testify at the trial. Clearly, the trial court did not abuse its discretion when it proceeded with the trial without the defense witnesses being present. The defendant made no motion for a continuance and failed to proffer during trial what the absent defense witnesses would say. Under these circumstances, we fail to see how the defendant was deprived, as urged, of his sixth amendment right to present witnesses in his own behalf. See Smith v. State, 59 So. 2d 625, 626 (Fla.1952); Fuller v. Rinebolt, 382 So. 2d 1239, 1240 (Fla. 4th DCA 1980); Percznski v. State, 366 So. 2d 863, 864 (Fla. 4th DCA 1979).

Second, we agree with the defendant — and, indeed, the state concedes — that the twenty-five (25) year total sentence imposed on the defendant as a habitual felony offender must be reversed because it violates the defendant’s constitutional guarantee against double jeopardy. Upon receipt of the jury verdict, the trial court immediately sentenced the defendant to a total of twenty (20) years in the state penitentiary, to wit: five years on counts (1) — (4), sentences to run consecutively; and ten years on count (5), sentence to run concurrently with the sentences imposed on counts (l)-(4). This sentence, which was within the sentencing guidelines range, was imposed without ruling at that time on the state’s request to sentence the defendant as a habitual felony offender.

The trial court signed formal written adjudications of guilt and sentences, as stated above, in accord with its oral pronouncements in open court. Over two weeks later, the trial court conducted a second sentencing hearing and imposed the sentences appealed from as amended sentences after declaring the defendant a habitual felony offender- — and in so doing increased the defendant’s total sentence to twenty-five (25) years in the state penitentiary. Clearly, the trial court lost jurisdiction over the defendant after having imposed the prior sentences totalling twenty-years imprisonment, and the trial court’s subsequent effort to aggravate the prior sentence by increasing the number of years of imprisonment and declaring the defendant a habitual felony offender violated the defendant’s constitutional guarantee against double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978); Flowers v. State, 351 So. 2d 387 (Fla. 1st DCA 1977).

The final judgments of conviction appealed from are affirmed. The sentences imposed upon these convictions are reversed, and the cause is remanded to the trial court to reinstate the original. sentence imposed on the defendant upon receipt of the jury verdict, to wit: five years in the state penitentiary on counts (l)-(4), sentences to run consecutively; and ten years in the state penitentiary, sentence to run concurrently with the sentences imposed on counts (1) — (4)—which sentence shall be a sentencing guidelines sentence and not a habitual offender sentence.

Affirmed in part; reversed in part and remanded.


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Citator

Cited By

  • Strickland v. State, 681 So. 2d 929 (Fla. 3d DCA 1996)
    …of the defendant’s constitutional protection against double jeopardy to increase the sentence at a later time. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Coleman v. State, 645 So. 2d 176 (Fla. 3d DCA 1994); Alvarez v. State, 561 So. 2d 5 (Fla. 3d DCA 1990). See also Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982) (bright line rule that sentence is “imposed” when sentencing hearing is concluded). The state argues that dental b…
  • Dax Anthony Rodriguez v. State, 819 So. 2d 828 (Fla. 3d DCA 2002)
    …395 U.S. 711, 89 S.Ct. 2072 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Lippman v. State, 633 So. 2d 1061 (Fla.1994); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). In Coleman v. State, 645 So. 2d 176 (Fla. 3d DCA 1994), immediately after receiving the jury’s verdict finding defendant guilty, the trial court sentenced defendant to a guideline sentence of twenty years in state prison. Some two weeks later, the trial court conducted another sentenc…

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