DONALD L. THOMAS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Donald Thomas was convicted of two counts of lewd and lascivious acts and sentenced to 30 years as a violent career criminal plus an additional 15 years as a prison releasee reoffender. His appellate counsel failed to raise a double jeopardy claim on direct appeal, and this court granted his petition for ineffective assistance of appellate counsel, vacating the duplicate PRR sentences.
Appellate counsel was ineffective for failing to raise the double jeopardy issue, which constitutes fundamental error. The court granted the petition for ineffective assistance of appellate counsel and vacated the 15-year prison releasee reoffender sentences, leaving only the 30-year violent career criminal sentences in place.
[1] Sentencing a defendant twice for the same offense violates the constitutional prohibition against double jeopardy.
[2] A double jeopardy violation constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“It is fundamental that a person cannot be sentenced twice for the same offense, yet in this case that is precisely what happened when the judge imposed two sentences for each conviction. This was a violation of the constitutional prohibition against double jeopardy.”
Establishes the core double jeopardy violation and the fundamental nature of the error.
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Join FLexlaw to unlock all legal intelligenceThomas was convicted of two counts of lewd and lascivious act in the presence of a child. At sentencing, the trial court found Thomas qualified as bot…
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COBB, J.
Petitioner, Donald L. Thomas, alleges ineffective assistance of appellate counsel for not raising a double jeopardy issue on appeal. See Fla. R.App. P. 9.140(j). Thomas was convicted of two counts of a lewd and lascivious act in the presence of a child. At sentencing on June 8, 1998, the prosecutor presented evidence that Thomas qualified as both a violent career criminal and as a prison releasee reoffender. See generally, §§ 775.084(l)(d) and 775.082(9), Fla. Stat. (1999). When asked to respond, defense counsel indicated that the prosecutor had to elect an enhancement, and further argued that the Prison Releasee Reoffender Act was unconstitutional.
The trial court declared that Thomas was a violent career criminal and sentenced him to thirty years incarceration on each count, to run concurrently. The trial court also found Thomas to be a prison releasee reoffender and orally pronounced a fifteen year term of imprisonment on each count, to run concurrently with his violent career criminal sentences. After sentence was imposed, defense counsel raised an objection as to the “double sentencing.” The trial judge overruled the objection, stating that he did not think that double jeopardy would prohibit the sentencing scheme, and added that the appellate court would review it and might make some decision on it.
On direct appeal, appellate counsel filed an Anders brief, and the double jeopardy issue was not raised. Although the initial brief stated that the court found Thomas to be a prison releasee reoffender, the brief did not mention that the court imposed fifteen year sentences in addition to the thirty year sentences.
It is fundamental that a person cannot be sentenced twice for the same offense, yet in this case that is precisely what happened when the judge imposed two sentences for each conviction. This was a violation of the constitutional prohi bition against double jeopardy.1 See Adams v. State, 24 Fla. L. Weekly D2394, — So. 2d - (Fla. 4th DCA Oct. 20, 1999). A double jeopardy violation constitutes fundamental error,2 and appellate counsel was ineffective for failing to raise this issue on appeal.
The petition alleging ineffective assistance of appellate counsel is granted. As the record before us shows that Thomas was sentenced twice for each offense, it would serve no useful purpose to allow a second appeal. Cf. Johnson v. Wainwright, 498 So. 2d 938 (Fla.1986). We therefore vacate the fifteen year PRR sentences. See § 775.082(9)(c), Fla. Stat. (1999).
PETITION GRANTED; SENTENCES VACATED.
PETERSON and THOMPSON, J.J., concur. . See generally, U.S. Const. amend. V; Art. I, § 9, Fla. Const. . See Lippman v. State, 633 So. 2d 1061 (Fla. 1994); State v. Johnson, 483 So. 2d 420 (Fla. 1986).
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Grant v. State, 770 So. 2d 655 (Fla. 2000)…s v. State, 750 So. 2d 659, 662 (Fla. 4th DCA 1999) (reasoning that the “imposition of a sentence under both [the prison releasee reoffender and the habitual felony offender] statutes constitutes double jeopardy and is illegal”) and Thomas v. State, 745 So. 2d 1119 (Fla. 5th DCA 1999) (holding that such concurrent sentences violate double jeopardy).1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. MATERIAL FACTS Kenneth Grant pled “no contest” to a charge of sexual battery (reserving the right to se…1 / 2
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Verro Chambers v. State, 752 So. 2d 64 (Fla. 1st DCA 2000)…s an habitual felony offender. Appellant was sentenced as a prison releasee reoffender to a 5-year sentence, the maximum permitted by statute for a third degree felony. See also Grant v. State, 745 So. 2d 519 (Fla. 2d DCA 1999). Cf. Thomas v. State, 745 So. 2d 1119 (Fla. 5th DCA 1999)(court vacated 15-year prison releasee reoffender sentences imposed to run concurrently with 30-year violent career criminal sentences, because it is fundamental that a person cannot be sentenced twice for the same offense). In C…
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Kimbrough v. State, 776 So. 2d 1055 (Fla. 5th DCA 2001)…for a single offense. At the time this sentence was entered, the appellate courts disagreed as to whether the trial court could enter enhanced sentences under both the PRR and the HFO provisions for a single offense. This court in Thomas v. State, 745 So. 2d 1119 (Fla. 5th DCA 1999), and in Lewis v. State, 751 So. 2d 106 (Fla. 5th DCA 1999), held that the trial court could not. This was consistent with the holding from the Fourth District in Adams v. State, 750 So. 2d 659 (Fla. 4th DCA 1999). The supreme cou…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)