RICHARD RIVERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Rivera challenged the summary denial of his Rule 3.850 motion, claiming his right to counsel and double jeopardy protections were violated when the trial court resentenced him without counsel more than sixty days after original sentencing. The appellate court affirmed three claims but reversed on the resentencing issue, finding the amended sentence improperly deviated from and increased the original oral pronouncement.
The court reversed the denial of Rivera's motion on the resentencing issue, holding that the amended sentence improperly deviated from the original oral pronouncement and constituted an increased sentence in violation of double jeopardy. The court affirmed the summary denial as to three other claims.
[1] A resentencing that imposes a harsher penalty than the original sentence violates the Double Jeopardy Clause.
[2] A trial court's oral pronouncement of sentence is the controlling sentence, and any subsequent written amendment that deviates from the oral pronouncement and increases t…
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 amended sentence imposes sex offender probation in addition to drug offender probation”
Establishes that the clarification hearing resulted in an increased sentence not originally imposed
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Join FLexlaw to unlock all legal intelligenceAt Rivera's original sentencing, the trial court imposed drug offender probation and ordered him to participate in sex offender program and have no co…
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[*56] PER CURIAM.
Rivera challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment as to three claims and reverse as to the remaining claim.
As one ground for relief, Rivera alleged that the trial court deprived him of his right to counsel and violated his right to be free from double jeopardy by resentencing him without the presence of counsel more than sixty days after he was originally sentenced. The trial court summarily denied this claim on the basis that the proceeding was not a resentencing but rather was simply a clarification of the sentence to which defense counsel had stipulated prior to leaving the courtroom.
The record reflects that the proceeding was in fact conducted for the purpose of clarifying the sentences imposed. However, at the clarification hearing in response to a question by Rivera’s probation officer, the State told the trial court, “That was the other thing. You had ordered drug probation, but it’s also sex offender probation.” The trial court then agreed that “it’s both.” The amended sentence imposes sex offender probation in addition to drug offender probation.
The transcript of the original sentencing hearing reveals that the trial court imposed drug offender probation but did not impose sex offender probation. Instead, the trial court announced that Rivera would be on drug offender probation and that “[h]e is also to participate in the sex offender program, to successfully complete same. He is to have no contact with the victim.” The trial court never stated that it was imposing sex offender probation, and these two conditions are but two of the many conditions encompassed in the standard conditions of sex offender probation. See § 948.03(5), Fla. Stat. (2000). Thus, the amended sentence deviates from the trial court’s original pronouncement of sentence and increases Rivera’s sentence in violation of double jeopardy.1
Because the amended sentence improperly deviates from the original oral pronouncement and constitutes an increased sentence, we reverse the denial of Rivera’s motion on this issue and remand for correction of the sentence to conform to the sentence as orally announced.
Affirmed in part, reversed in part, and remanded with directions.
FULMER, VILLANTI, and WALLACE, JJ., Concur. . We also have serious concerns about the propriety of defense counsel's stipulating to "clarifications” of a defendant’s sentence and then leaving the courtroom. This case illustrates what can happen when no one is present to represent the defendant's interests at a "clarification” hearing.
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Colon v. State, 905 So. 2d 1000 (Fla. 5th DCA 2005)…e Farber. (emphasis added) See also Ashley v. State, 850 So. 2d 1265, 1269 (Fla.2003)(jeopardy attaches at conclusion of sentencing hearing at which sentencing is pronounced); Armstrong v. State, 896 So. 2d 866 (Fla. 5th DCA 2005); Rivera v. State, 862 So. 2d 55 (Fla. 2d DCA 2003). Therefore, Counts II, IV and V are statutorily required to be concurrent. Macon. Section 921.16 is inclusive, and it places the burden on the trial judge to sentence with certainty. Hall. We reverse and remand to the trial cour…
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Santiago v. State, 147 So. 3d 1057 (Fla. 3d DCA 2014)…ual offender sentence in a subsequent jail credit proceeding violated double jeopardy where the trial court inadvertently failed to announce at the revocation hearing that the sentence imposed remained a habitual offender sentence); Rivera v. State, 862 So. 2d 55, 56 (Fla. 2d DCA 2003) (stating amendment of sentence to impose sex offender probation in addition to previously pronounced drug probation constituted violation of defendant’s double jeopardy rights); Martinez v. State, 625 So. 2d 1306, 1307 (Fla. 3…
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Pate v. State, 908 So. 2d 613 (Fla. 2d DCA 2005)…true even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing. Maybin v. State, 884 So. 2d 1174, 1175 (Fla. 2d DCA 2004); Rivera v. State, 862 So. 2d 55, 56 (Fla. 2d DCA 2003); Nelson v. State, 724 So. 2d 1202, 1204 (Fla. 2d DCA 1998). Under the circuit court’s order of November 12, 2004, Pate had completed his sentences. The subsequent reinstatement of the forty-year sentences constituted resentenc…