ROBERT DALE FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fisher appealed the denial of his motion to correct his sentence, arguing that the enhancement of his conspiracy to traffic in methaqualone conviction from a first-degree felony to a life felony violated double jeopardy principles. The court reversed in part, finding the enhancement impermissible and requiring resentencing without the enhancement, while affirming the trial court's disposition of Fisher's other arguments.
The court held that the enhancement of the conspiracy conviction violated double jeopardy and must be reversed. Additionally, the trial court's retention of jurisdiction over the first third of the sentence was impermissible and must be stricken because Fisher was sentenced under the guidelines. Fisher must be resentenced on the conspiracy conviction without the enhancement.
[1] Enhancing a felony offense from first-degree to life felony based on the same conduct violates the prohibition against double jeopardy.
[2] A defendant must be resentenced on a conviction without an impermissible enhancement when that enhancement violates double jeopardy.
Previewing 2 of 5 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“We reverse the orders insofar as they deny Fisher's request for relief related to his sentence for conspiracy to traffic in methaqualone. The enhancement of that offense from a first-degree felony to a life felony violated the prohibition against double jeopardy.”
Establishes the core holding that the sentence enhancement violated double jeopardy and must be reversed.
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Join FLexlaw to unlock all legal intelligenceRobert Dale Fisher was convicted of conspiracy to traffic in methaqualone. His conspiracy conviction was enhanced from a first-degree felony to a life…
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PER CURIAM.
We affirm in part and reverse in part the summary denial of Robert Dale Fisher’s motion for correction of sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Fisher filed two notices of appeal, the first from the initial order denying his motion, case number 99-1066, and the second from the second amended order 'denying his motion, case number 99-3012. The second amended order corrects a date, and does not change the substantive basis for the denial. Both orders address the same motion. Therefore, we have consolidated the two cases. We reverse the orders insofar as they deny Fisher’s request for relief related to his sentence for conspiracy to traffic in methaqualone. The enhancement of that offense from a first-degree felony to a life felony violated the prohibition against double jeopardy. Under the circumstances of this case, Fisher must be resen-tenced on the conspiracy conviction without the enhancement. See Hopping v. State, 708 So. 2d 263 (Fla.1998).
In addition, the trial court’s retention of jurisdiction over the first third of the sentence on the conspiracy conviction was impermissible, and it must be stricken, because Fisher elected to be sentenced under the guidelines. See Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986) (holding that the trial court may not retain jurisdiction over a sentence when the defendant is sentenced under the guidelines).
Fisher’s other arguments are without merit and we affirm the circuit court’s disposition of them without comment.
Affirmed in part, reversed in part, and remanded for resentencing in accordance with this opinion within thirty days of the date of the mandate issued in this case.
BLUE, A.C.J., and NORTHCUTT and GREEN, JJ., Concur.
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Citator
Cited By
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Brown v. State, 808 So. 2d 236 (Fla. 2d DCA 2001)…delines scoresheet in prior documents attached to the trial court’s order denying relief. If Brown was sentenced pursuant to the sentencing guidelines, retention of jurisdiction over any portion of his sentence is impermissible. See Fisher v. State, 745 So. 2d 1092 (Fla. 2d DCA 1999). Consequently, the trial court must determine whether Brown was sentenced pursuant to the guidelines, and if so, it must strike the retention of jurisdiction from the judgment and sentence. Reversed and remanded. FULMER, A.C.J…
Authorities Cited
- Darin S. Hopping v. State, 708 So. 2d 263 (Fla. 1998)
- Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986)