EUGENE JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eugene Johnson appeals resentencing that increased his sentence from 48 months to 83 months after he had already begun serving the original sentence. The court reversed, holding that increasing a sentence after the defendant has begun serving it violates the Double Jeopardy Clause.
Once a sentence has been imposed and the defendant begins serving it, the sentence cannot be increased without violating the Double Jeoparty Clause. The trial court lacked jurisdiction to correct the sentences through a motion for rehearing when such correction could only be accomplished through appeal.
[1] A sentence, once imposed and begun to be served, may not be increased without violating the constitutional guarantee against double jeopardy.
[2] A trial court's order granting a motion for rehearing to vacate a sentence, when the sentence has already begun to be served, violates double jeopardy principles.
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Join FLexlaw to unlock all legal intelligence“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles .... To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense.”
Establishes the core double jeopardy principle that a sentence cannot be increased after execution has begun.
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Join FLexlaw to unlock all legal intelligenceJohnson pleaded guilty to burglary, grand theft, and criminal mischief in two cases on August 21, 2003. The trial court imposed concurrent 48-month se…
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PER CURIAM.
Eugene Johnson appeals from eighty-three month sentences which were imposed after the trial court vacated his original sentences of forty-eight months, which Johnson had already begun to serve. Because, under these circumstances, the eighty-three month sentences violated Johnson’s constitutional guarantee against double jeopardy, we reverse.
In circuit court case number 03-9433, Eugene Johnson was charged with burglary, grand theft, and criminal mischief. In circuit court case number 03-9992, he was charged with burglary and criminal mischief.
On August 21, 2003, Johnson pled guilty to the charges in both cases. Before the pleas were entered, the state an nounced in court that: 1) the sentencing guidelines provided for sentences between eighty-three months and thirty-five years in state prison; 2) Johnson qualified for sentencing as a habitual offender; and 8) the state’s plea offer was for fourteen years. Over the state’s objection, the trial court allowed Johnson to plead guilty in exchange for concurrent sentences of forty-eight months in state prison. The court then accepted Johnson’s guilty pleas, entered adjudications of guilt, and imposed concurrent sentences of forty-eight months.
Written sentencing orders imposing concurrent forty-eight month sentences as a habitual offender were filed on August 28, 2003. Also on August 28, 2003, the state filed a Motion for Rehearing, seeking to have the forty-eight month sentences vacated on the grounds that the sentences were downward departures from the sentencing guidelines. Over defense counsel’s objection, that motion was granted. The original sentences were vacated by written order on September 9, 2003. At a subsequent hearing on September 11, 2003, Johnson was resentenced to concurrent eighty-three month terms of imprisonment as a habitual offender. Johnson appeals, arguing that his constitutional right against double jeopardy was violated when the trial court resentenced him to concurrent eighty-three month terms after the forty-eight month sentences were already underway.
We agree.
“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles .... To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense.” Ashley v. State, 850 So. 2d 1265, 1267 (Fla.2003) (citations omitted).
See also Troupe v. Rowe, 283 So. 2d 857 (Fla. 1973) (finding that a sentence which had been imposed could not thereafter be increased without violating a defendant’s constitutional protection against double jeopardy).
That the sentences would have been reversed if the state appealed rather than file a motion for rehearing is of no consequence. See Gartrell v. State, 626 So. 2d 1364, 1365 (Fla.1993) (holding that the filing of a motion to correct an illegal sentence “will not serve as a substitute for a notice of appeal, even though the motion was filed within the time allowed for appeal”).
The trial court lacked jurisdiction to correct sentences that could only be corrected on appeal. Id. at 1366.
Accordingly, we reverse the eighty-three month sentences imposed at the resentencing hearing and remand with directions to reinstate the original forty-eight month sentences.
Reversed and remanded with directions.
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Domingo Rodriguez v. State, 899 So. 2d 471 (Fla. 3d DCA 2005)…by the court, see Florida Rule of Criminal Procedure 3.172(f), and upon Rodriguez starting to serve his sentence, the state’s only recourse if it questioned the legality of the downward departure sentence was to seek an appeal. See Johnson v. State, 881 So. 2d 706 (Fla. 3d DCA 2004)(the trial court lacked jurisdiction to correct sentences that could only be addressed by the appellate court on the state’s filing a proper notice of appeal); Smith v. State, 898 So. 2d 1109 (Fla. 2d DCA March 30, 2005)(state impr…
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Melvee Wanel Tucker v. State, 78 So. 3d 36 (Fla. 3d DCA 2012)…is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” Id. at 1175. See also, Johnson v. State, 881 So. 2d 706 (Fla. 3d DCA 2004). The proper procedure for the State to challenge a below-guidelines sentence imposed without written reasons is by way of an appeal. Gartrell v. State, 626 So. 2d 1364 (Fla.1993). We therefore grant the petition insofar as it see…
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Pate v. State, 908 So. 2d 613 (Fla. 2d DCA 2005)…ouble jeopardy principles do not allow for a sentence increase. Jones v. State, 760 So. 2d 994 (Fla. 2d DCA 2000); Holmes v. State, 711 So. 2d 565, 567 (Fla. 2d DCA 1997); Rodriguez v. State, 899 So. 2d 471, 473 (Fla. 3d DCA 2005); Johnson v. State, 881 So. 2d 706, 707 (Fla. 3d DCA 2004); Sterling v. State, 682 So. 2d 694, 695 (Fla. 5th DCA 1996); Thomas v. State, 648 So. 2d 298, 301 (Fla. 5th DCA 1995). Accordingly, the order of January 10, 2005, denying Pate’s motion to correct sentence, is reversed; the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- Flazell Troupe v. The Honorable Ellen Morphonios Rowe & the Honorable Paul Baker, 283 So. 2d 857 (Fla. 1973)
- Gartrell v. State, 626 So. 2d 1364 (Fla. 1993)