A.C. HARROLL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2007-06-20
No. 3D06-2195
Before FLETCHER, WELLS, and SUAREZ, JJ.
960 So. 2d 797 Florida District Court of Appeal, Third District (2007) Positive Treatment
Cited by 17 cases

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Synopsis

A sexual offender challenges a trial court's modification of his probation to include mandatory GPS electronic monitoring as a condition. The Florida District Court of Appeal affirms, holding that the trial court properly imposed this mandatory condition under Florida Statutes section 948.30, which requires electronic monitoring for certain sex offenders, and that doing so does not violate double jeopardy principles.


Holding

The trial court did not err in imposing the mandatory GPS monitoring condition. Under Florida Rule of Criminal Procedure 3.800(c), the trial court may modify an incomplete sentence within sixty days to include any mandatory provision of chapter 948 that was omitted. Re-sentencing to include a mandatory condition does not violate double jeopardy principles.


Headnotes

[1] A trial court may modify an incomplete sentence within sixty days to include a mandatory condition of probation that was omitted at the original sentencing.

[2] Imposing a mandatory electronic monitoring condition on a sex offender's probation, even after the initial sentencing, does not violate double jeopardy principles when th…

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Key Quotes

“the trial court may modify an incomplete sentence within sixty days of its imposition to include any provision of chapter 948 which it failed to originally pronounce”

Establishes the legal basis for the trial court's authority to modify Harroll's sentence to include the mandatory GPS monitoring condition.

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Facts & Procedural History

Harroll was charged with failing to re-register as a sexual offender. On July 6, 2006, he pleaded guilty and was sentenced to two years of probation w…

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Opinion of the Court
SUAREZ, J.

SUAREZ, J.

The defendant appeals an order of the trial court modifying his probation to require him to wear a G.P.S. transmitter as a condition of his probation. We affirm.

The defendant was charged with failing to re-register as a sexual offender in violation of section 943.0435, Florida Statutes (2006). On July 6, 2006;- the defendant entered a plea of guilty and was sentencéd to two years of probation with a special condition that he continue to register as required. On July 28, 2006, pursuant to a Department of Corrections request, the trial court re-visited the issue of the mandatory-monitoring sentencing requirements under section 948.30, Florida Statutes (2006). Under section 948.30, Florida Statutes (2006),1 the trial court is required to impose mandatory electronic monitoring as a condition of probation for defendants previously convicted of unlawful sexual activity involving a victim fifteen years of age or younger where the offender is eighteen years of age or older. The defendant had previously been convicted of lewd and lascivious assault on a child under the age of twelve, see § 800.04, Fla. Stat. (1990), and sexual battery on a minor under twelve years of age. See § 794.011, Fla. Stat. (1990). On August 18, 2006, pursuant to section 948.30, the trial court imposed G.P.S. electronic monitoring as a mandatory condition of the defendant’s probation. The defendant appeals the final judgment of conviction and sentence ordering him to wear the transmitter on grounds of double jeopardy.

We hold that the trial court did not err by imposing the mandatory condition of sex-offender probation of wearing the G.P.S. monitor. Under Florida Rule of Criminal Procedure 3.800(c), the trial court may modify an incomplete sentence within sixty days of its imposition to include any provision of chapter 948 which it failed to originally pronounce. Where the defendant’s sentence is incomplete because it omits a mandatory condition of probation under chapter 948 as part of the sex-offender sentence, the trial court may properly modify the defendant’s sentence within sixty days to include the condition mandated by chapter 948. Cf. Kiriazes v. State, 798 So. 2d 789 (Fla. 5th DCA 2001). Moreover, “[i]t does not offend double jeopardy principles to re-sentence a defendant to harsher terms when the original sentence [is] invalid....” See Allen v. State, 853 So. 2d 533, 536 (Fla. 5th DCA 2003)(citing Bozza v. U.S., 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947)(re-sentenc-ing that imposes more severe sentence to correct omitted mandatory penalty does not violate double jeopardy clause)); see also Oce v. State, 795 So. 2d 278 (Fla. 3d DCA 2001)(Cope, J., concurring).

Affirmed.

. Section 948.30, Florida Statutes (2006) provides in pertinent part:

948.30. Additional terms and conditions of probation or community control for certain sex offenses.—

Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this section.

(3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:

(a) Is placed on probation or community control for a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger arid the offender is 1S years of age or older;

(b) Is designated a sexual predator pursuant to s. 775.21; or .

(c) Has previously been convicted of a violation of chápter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older, the court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision. (emphasis supplied)


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Citator

Cited By

  • Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)
    …State, 682 So. 2d 694 (Fla. 5th DCA 1996). The only circumstance in which it may add a condition that might be deemed an increase in the sentence is when it adds a condition of probation or community control under chapter 948. See Harroll v. State, 960 So. 2d 797, 798 (Fla. 3d DCA 2007). Rule 3.800(a) only allows the trial court to modify an “illegal” sentence. We are [*550] not completely convinced that the sentence originally imposed on count 5 was an “illegal sentence,” even though it lacked the minimum…
  • Grosso v. State, 2 So. 3d 362 (Fla. 4th DCA 2008)
    …the original sentence, double jeopardy principles are not offended where the trial court subsequently corrects the sentence by imposing the omitted mandatory sanction.” Fields v. State, 968 So. 2d 1032, 1033-34 (Fla. 5th DCA 2007); Harroll v. State, 960 So. 2d 797, 798 (Fla. 3d DCA 2007), review denied, 966 So. 2d 966 (Fla.2007). However, Florida Rule of Criminal Procedure 3.800(c) limits the time frame for modifying a sentence. The rule provides that “[a] court may reduce or modify to include any of the pro…
  • Witchard v. State, 68 So. 3d 407 (Fla. 4th DCA 2011)
    …ere the trial court ordered section 948.063 electronic monitoring forty days after the initial modification of probation because the trial court had failed “to impose a mandatory penalty at the original sentence” (emphasis added)); Harroll v. State, 960 So. 2d 797, 798 (Fla. 3d DCA 2007) (recognizing that modifying the probation to include the mandatory condition of electronic monitoring constituted a “more severe sentence” with “harsher terms”). Furthermore, the Florida Legislature also seems to recognize t…

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