QUIANA A. FELDERS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Court granted belated appeal on ineffective assistance of appellate counsel grounds, reversed the minimum mandatory sentence component as a double jeopardy violation where the State obtained resentencing after initially failing to object to its omission, and reinstated the original sentence.
Resentencing to impose a minimum mandatory drug trafficking penalty violates double jeopardy when the State failed to object to its omission at initial sentencing and the minimum mandatory was waivable.
[1] A minimum mandatory sentence for drug trafficking may be waived by the State, and resentencing to impose such a penalty after the State failed to object to its initial om…
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Join FLexlaw to unlock all legal intelligence“because minimum mandatory for drug trafficking may be waived, sentence not illegal where State fails to object to omission of minimum mandatory at initial sentencing; resentencing to impose minimum mandatory under such circumstances violates double jeopardy”
Court citing Gray v. State for the legal standard governing minimum mandatory sentences and double jeopardy violations
Petitioner was initially sentenced for conspiracy to traffic in cocaine without the minimum mandatory penalty, which the State did not object to. The …
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Petitioner seeks a belated appeal based on ineffectiveness of appellate counsel. We deny the Petition in all respects except for Petitioner’s claim that counsel should have challenged the minimum mandatory component of her sentence on double jeopardy grounds. Petitioner was initially sentenced for conspiracy to traffic in cocaine without imposition of the minimum mandatory penalty. The State did not object. The court later resentenced Petitioner at *725the behest of the State to impose the minimum mandatory penalty. This aspect of Petitioner’s sentence was not challenged on direct appeal as a double jeopardy violation. The State concedes that Petitioner is entitled to relief from the minimum mandatory. See Gray v. State, 915 So.2d 254 (Fla. 5th DCA 2005) (because minimum mandatory for drug trafficking may be waived, sentence not illegal where State fails to object to omission of minimum mandatory at initial sentencing; resen-tencing to impose minimum mandatory under such circumstances violates double jeopardy); see also Delemos v. State, 969 So.2d 544, 551 (Fla. 2d DCA 2007).
Accordingly, we grant the Petition for the limited purpose of challenging the minimum mandatory sentence and consider the appeal without further briefing. Based upon the State’s proper concession, we reverse the sentence and remand with directions to strike the minimum mandatory term, effectively reinstating the sentence originally orally pronounced and imposed.
AFFIRMED in part; REVERSED in part and REMANDED.
PALMER, TORPY and EVANDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Francis v. State, 65 So. 3d 103 (Fla. 5th DCA 2011)…the trial court for entry of a nunc pro tunc order finding the defendant competent to stand trial.”). Accord Hampton v. State, 988 So. 2d 103, 106 (Fla. 2d DCA 2008); Bailey v. State, 931 So. 2d 224, 225 (Fla. 1st DCA 2006). See also Ortiz v. State, 55 So. 3d 724, 724 (Fla. 5th DCA 2011).1 Judgment and Sentence AFFIRMED; Case REMANDED for entry of proper order. MONACO, C.J., PALMER, and JACOBUS, JJ., concur. . The only difference between the situation in Ortiz and the instant case was that the defend…
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Mason v. State, 71 So. 3d 229 (Fla. 1st DCA 2011)…f competency after the defendant has previously been found incompetent) expressly require a written order, the decisions of this and other courts require a written order. Francis v. State, 65 So. 3d 103, 103 n. 1 (Fla. 5th DCA 2011); Ortiz v. State, 55 So. 3d 724 (Fla. 5th DCA [*230] 2011); Childs v. State, 44 So. 3d 216 (Fla. 2d DCA 2010); Martinez v. State, 851 So. 2d 832 (Fla. 1st DCA 2003). AFFIRMED and REMANDED with directions. DAVIS, VAN NORTWICK, and CLARK, JJ., concur.…
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Pereira v. State, 244 So. 3d 378 (Fla. 5th DCA 2018)
Authorities Cited
- Delemos v. State, 969 So. 2d 544 (Fla. 2d DCA 2007)
- Tosha Gray v. State, 915 So. 2d 254 (Fla. 5th DCA 2005)