ALFRAEDO WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alfraedo Williams appealed his re-sentencing following a successful appeal that reduced his armed robbery conviction to second-degree robbery. The court reversed the consecutive sentencing imposed on re-sentencing as an impermissible increase that violated due process, but affirmed the lower court's other decisions regarding the same criminal episode analysis and habitual offender classification.
The court held that consecutive sentencing on re-sentencing represented an impermissible increase that violated due process and penalized the appellant for success on appeal, requiring remand for concurrent sentencing. The court affirmed the lower court's determination that the charges were separate offenses and affirmed the law of the case doctrine preventing relitigation of the habitual offender classification that could have been raised originally.
[1] A resentencing that imposes consecutive terms of imprisonment where the original sentence had concurrent terms constitutes an impermissible increase in the sentence and p…
[2] A defendant's due process rights are violated when a court changes a sentence from concurrent to consecutive terms upon resentencing after a successful appeal, absent ide…
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Join FLexlaw to unlock all legal intelligence“The consecutive terms of imprisonment on resentencing represent an impermissible increase in the original sentence and penalizes the appellant for success on the original appeal.”
Establishes the core holding that re-sentencing to consecutive terms violated due process and constituted unconstitutional vindictiveness.
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Join FLexlaw to unlock all legal intelligenceWilliams was convicted of armed robbery with a weapon (hot coffee) and escape. His successful appeal reversed the armed robbery conviction and resulte…
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RYDER, Acting Chief Judge.
Alfraedo Williams seeks review of consecutive terms of imprisonment imposed on re-sentencing following his successful appeal of an armed robbery conviction. He also appeals the lower court’s failure to more fully consider whether the charges arose out of the same criminal episode and its refusal to revisit the original habitual violent felony offender classification. We conclude that the consecutive resentencing represented an impermissible increase in the original sentence, and, therefore, reverse and remand for re-sentencing. We otherwise affirm.
Mr. Williams was found guilty following a jury trial of robbery with a weapon, to-wit: hot coffee, in violation of section 812.13(1) and (2)(b), Florida Statutes (1991). His successful appeal resulted in reversal of the armed robbery conviction and entry of judgment for second degree robbery pursuant to section 812.13(2)(c).1 The judgment was otherwise affirmed. On remand, the lower court resentenced the appellant “on Count I only” to thirty years with a ten-year minimum mandatory, consecutive to the thirty-year sentence on Count II, escape. Following an unsuccessful motion to correct the sentence, this appeal ensued.
The consecutive terms of imprisonment on resentencing represent an impermissible increase in the original sentence and penalizes the appellant for success on the original appeal. The harsher consecutive sentence raises a presumption of vindictiveness, and there is no identifiable conduct on the appellant’s part which occurred after the time of the original sentencing to justify the harsher sentence. Somerville v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993). The state contends that the lengthy consecutive terms are consistent with the trial judge’s original 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 I.
The appellant next challenges the trial judge’s failure to more fully consider whether the charges arose out of the same criminal episode. See Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). Because we reverse the consecutive resentencing, this alternative argument for concurrent sentencing is moot. But, in any event, the factual scenario here reflects that the charged offenses were separate. We, therefore, affirm.
We also affirm the final point raised by the appellant concerning the lower court’s error in declining to revisit the original habitual violent felony offender classification that was not challenged in the original appeal. The law of the case precludes relitigation or raising issues that could have been raised in the original appeal. Gaskins v. State, 502 So. 2d 1344 (Fla. 2d DCA 1987); State v. Stabile, 443 So. 2d 398 (Fla. 4th DCA 1984).
Reversed in part, affirmed in part and remanded.
, LAZZARA and BLUE, JJ., concur. . Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995).
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Gisi v. State, 948 So. 2d 816 (Fla. 2d DCA 2007)…the record so corroborates, that absent the application of the Pearce presumption, he did not show vindictiveness by the sentencing judge. Gisi also argues that the new sentences here are more closely aligned with the holding of Williams v. State, 686 So. 2d 615 (Fla. 2d DCA 1996) (holding that new sentences must be reversed when the original sentences were concurrent and the new sentences were consecutive). However, Williams dealt with the reversal of two concurrent life sentences switched at re-sentencing…
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Warren v. State, 709 So. 2d 138 (Fla. 4th DCA 1998)…t be permitted to file a long delayed appeal now. Although Wade v. State, 222 So. 2d 434 (Fla. 2d DCA 1969), seems to permit an appeal from a conviction on resentencing, it appears that the second district has not followed it. See Williams v. State, 686 So. 2d 615 (Fla. 2d DCA 1996), rev. denied, 694 So. 2d 739 (Fla.1997); Gaskins v. State, 502 So. 2d 1344 (Fla. 2d DCA 1987). We firmly subscribe to the notion that appeals should be seasonably pursued so that neither the prosecution nor the defense is prejudic…
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Isom v. State, 800 So. 2d 292 (Fla. 3d DCA 2001)…precludes relitigation of all issues necessarily ruled upon by the court, as well as all issues upon which appeal could have been taken, but which were not appealed; per curiam affirmance establishes the law of the case). See also Williams v. State, 686 So. 2d 615, 616 (Fla. 2d DCA 1996); White v. State, 651 So. 2d 726 (Fla. 5th DCA 1995)(a per curiam decision, even without opinion, establishes the law of the case on the same issues and facts which were raised or which could have been raised), approved, 666 S…
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
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Alfraedo Williams v. State, 651 So. 2d 1242 (Fla. 2d DCA 1995)
- Kingsway Condo. Apts. NO. 1, Inc. v. Kingsway Builders, Inc., 443 So. 2d 398 (Fla. 4th DCA 1984)
- State v. Stabile, 443 So. 2d 398 (Fla. 4th DCA 1984)
- Alfonso v. State, 561 So. 2d 1207 (Fla. 3d DCA 1990)
- Gaskins v. State, 502 So. 2d 1344 (Fla. 2d DCA 1987)
- Earnest Somerville, Jr. v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993)
- Colwell v. State, 471 So. 2d 1374 (Fla. 5th DCA 1985)