COLBY ALLEN SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court's written habitual offender sentence violated double jeopardy because it was not orally pronounced at resentencing, and the appellate court reversed that portion of the order and remanded for a new written sentencing order consistent with the oral pronouncement.
A written habitual offender sentence imposed without oral pronouncement at resentencing violates double jeopardy and is illegal.
[1] A double jeopardy claim arising from failure to orally pronounce a habitual offender sentence at resentencing may be raised in a Rule 3.800(a) motion when the violation a…
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Join FLexlaw to unlock all legal intelligence“resentencing pursuant to Heggs is a de novo proceeding which must comport with all constitutional requirements”
Citing Trotter v. State for the proposition that Heggs resentencing must satisfy constitutional requirements
Smith was resentenced pursuant to Heggs v. State, and the trial court failed to orally pronounce a habitual offender sentence, though it was included …
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PER CURIAM.
The appellant challenges the order by which the trial court denied his Florida Rule of Criminal Procedure 3.800(a) motion. We conclude that only one of the appellant’s claims has merit. Because the record confirms the appellant’s claim that the trial court did not orally pronounce a habitual offender sentence when resentencing the appellant pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000), his written habitual offender sentence violates double jeopardy and is illegal. See Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996), approved by Ashley v. State, 28 Fla. L. Weekly S18, — So. 2d -, 2003 WL 60564 (Fla. Jan. 9, 2003); see also Trotter v. State, 825 So. 2d 362 (Fla.2002) (holding that resentencing pursuant to Heggs is a de novo proceeding which must comport with all constitutional requirements); see also Hopping v. State, 708 So. 2d 263 (Fla.1998)(holding that a double jeopardy claim may be raised in a rule 3.800(a) motion when the double jeopardy violation can be determined from the face of the record).
We therefore reverse the order to the extent that it reflects the trial court’s denial of the double jeopardy claim, but we otherwise affirm the order under review. This case is remanded to the trial court for entry of a new written sentencing order which is consistent with the oral pronouncement at resentencing.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
ALLEN, C.J., BOOTH and BARFIELD, JJ., concur.
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Fitzpatrick v. State, 863 So. 2d 462 (Fla. 1st DCA 2004)…ey v. State, 850 So. 2d 1265 (Fla.2003), approving Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996), this is an issue implicating double jeopardy protections and an illegal sentence so as to be presentable under rule 3.800(a). See Smith v. State, 844 So. 2d 755 (Fla. 1st DCA 2003). In denying the appellant’s motion the trial court found that the appellant was properly sentenced as a habitual offender, and referred to the sentencing transcript. However, that transcript was not attached to the appealed ord…
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Colby Smith v. State, 868 So. 2d 1287 (Fla. 1st DCA 2004)…PER CURIAM. Colby Allen Smith appeals the sentences imposed on remand following this court’s opinion in Smith v. State, 844 So. 2d 755 (Fla. 1st DCA 2003), for crimes he committed on March 17, 1997. We REVERSE and REMAND for resentencing using an appropriate scoresheet that reflects the proper scoring of Smith’s attempt offenses at two levels below the completed offenses, pursuant…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Darin S. Hopping v. State, 708 So. 2d 263 (Fla. 1998)
- Trotter v. State, 825 So. 2d 362 (Fla. 2002)
- Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996)