RANDALL GALLUP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randall Gallup appeals his sentence following revocation of community control, arguing the trial court violated double jeopardy by increasing his sentence beyond that agreed upon in a negotiated plea. The court agrees and reverses, reinstating the original eighteen-month sentence.
The trial court violated appellant's double jeopardy rights by increasing his previously-imposed lawful sentence. Since the judge did not withhold sentencing, make the plea conditional upon return, or warn of consequences, the resentencing was improper.
[1] A trial court violates a defendant's constitutional rights against double jeopardy by increasing a previously imposed lawful sentence without making the plea or sentence…
[2] A trial court may not impose a greater sentence than that agreed upon in a negotiated plea agreement when the defendant's failure to appear after a furlough was not made…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record is clear that the trial judge did not withhold sentencing or, in any way, make appellant's plea or sentence conditional upon his return from the furlough, nor did the judge warn appellant of the consequences of his failure to return.”
Establishes the critical fact that absence of conditional sentencing or warning made the resentencing improper
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGallup initially pleaded guilty to grand theft and dealing in stolen property, receiving two years community control and three years probation. After …
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CAMPBELL, Acting Chief Judge.
Appellant appeals his sentence following the revocation of his community control. He contends that the trial court erred in increasing his sentence initially imposed and imposing a greater sentence than that agreed upon in a negotiated plea agreement. We agree.
Appellant was initially charged with grand theft (case number 93-13565) and three counts of dealing in stolen property and three counts of grand theft (case number 93-14677). He pled guilty to the charges and was sentenced to two years community control followed by three years probation. Appellant was subsequently charged with violating the terms of his community control by committing grand theft and petit theft (case number 94-07149). Appellant pled guilty to these charges and was placed again on two years community control. Appellant was thereafter charged with violating his community control by not reporting to the Probation and Restitution Center after his release from county jail as required by the special conditions of his community control.
Appellant pled guilty to this violation based upon a negotiated plea of eighteen months incarceration. The trial judge accepted the plea and appellant was sentenced accordingly. Before appellant was to begin serving his sentence, he requested time to get his affairs in order and the trial judge agreed. The court granted appellant a furlough until the following Monday morning whereupon he was to report to the jail. Appellant failed to report as instructed and was later picked up on a warrant, brought back before the judge, and resentenced to four-and-a-half years incarceration in cases 93-13565 and 93-14677, and twenty-five months incarceration in case number 94-07149.
The record is clear that the trial judge did not withhold sentencing or, in any way, make appellant’s plea or sentence conditional upon his return from the furlough, nor did the judge warn appellant of the consequences of his failure to return. Therefore, the trial judge’s act of increasing the previously-imposed lawful sentence clearly violated appellant’s constitutional rights against double jeopardy. Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984); Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980); Beckom v. State, 227 So. 2d 232 (Fla. 2d DCA 1969).
Accordingly, we reverse appellant’s sentence with instructions that the trial judge reinstate the original eighteen-month sentence.
SCHOONOVER and WHATLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ernie Howard Nelson v. State, 724 So. 2d 1202 (Fla. 2d DCA 1998)…looked in the preparation of scoresheets, but there 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, 4…
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Robie v. State, 807 So. 2d 781 (Fla. 2d DCA 2002)…ed when he failed to appear to serve his sentence. Over the objection of Robie’s counsel, the court sentenced Robie to forty-nine months in prison on the offenses for which he was originally sentenced in 1997. The trial court cited Gallup v. State, 696 So. 2d 803 (Fla. 2d DCA 1997), to support its contention that the increase in Robie’s sentence was legal. The facts in Gallup are identical to this case, except that in Gallup the trial court did not inform the defendant that his sentence would be increased if…
Authorities Cited
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Hinton v. State, 446 So. 2d 712 (Fla. 2d DCA 1984)
- Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980)
- Beckom v. State, 227 So. 2d 232 (Fla. 2d DCA 1969)