WILLIAMS

v.

WAINWRIGHT

As grounds for relief Williams claims that he was denied due process and his right against double jeopardy due to the imposition of a greater sentence following the revocation of his probation.

The Petitioner has exhausted his state remedies. The issue in the instant petition was raised on appeal and found to be without merit.

Williams

v. State,

378 So. 2d 1317 (Fla. 3rd D.C.A.1980).

The procedure under which Petitioner was resentenced following the revocation of his probation is set forth in Fla.Stat. § 948.06(1):

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The court, upon the probationer being brought before it, shall advise him of such charge of violation and if such charge is admitted [or proved] to be true may forthwith revoke, modify or continue probation and, if revoked, shall adjudge the probationer guilty of the offense charged and proven or admitted . and impose any sentence which it might have originally imposed before placing the probationer on probation.

In

State v. Jones,

327 So. 2d 18 (Fla.1976), the Florida Supreme Court interpreted the statute as permitting resentencing, upon probation revocation, to a term in excess of that imposed under the original sentence. The

Jones

Court, however, based its decision solely upon statutory construction, and did not consider whether such a construction violates the double jeopardy clause of the Fifth Amendment.

See also Hutchinson v. State,

360 So. 2d 1160 (Fla.App.1978).

In

Roberts v. United States,

320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943), the Supreme Court reached a contrary result in its interpretation of the federal probation statute then in effect.

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In holding that a probationer’s resentencing for violation of probation could not exceed the term of the sentence originally imposed, the Court stated that “[t]o construe the Probation Act as not permitting the increase of a definite term of imprisonment fixed by a prior valid sentence gives full meaning and effect both to the first and second sections of the Act.” Id. at 272, 64 S.Ct. at 117. The

Roberts

Court, however, expressly refused to pass upon the constitutionality of resentencing a probation violator to a greater term than originally imposed.

Id.

at 265, 64 S.Ct. at 114.

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Justice Frankfurter, dissenting from the Supreme Court’s statutory interpretation in

Roberts,

would also have upheld the constitutionality of the increased sentence upon probation violation. Like the Fifth Circuit below, Justice Frankfurter did not characterize the resentence as a second punishment:

It would be strange if the Constitution stood in the way of a system so designed for the humane treatment of offenders. To vest in courts the power of adjusting the consequences of criminal conduct to the character and capacity of an offender, as revealed by a testing period of probation, of course does not offend the safeguard of the Fifth Amendment against double punishment. By forbidding that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb”, that Amendment guarded against the repetition of history by trying a man twice in a new and independent case when he already had been tried once, or punishing him for an offense when he had already suffered the punishment for it. But to set a man at large after conviction on condition of good behavior and on default of such condition to incarcerate him, is neither to try him twice nor to punish him twice. If Congress sees fit, as it has seen fit, to employ such a system of criminal justice there is nothing in the Constitution to hinder. 320 U.S. at 276-77, 64 S.Ct. at 119. (Frankfurter, J., dissenting) (citations omitted).

The Fifth Circuit, writing below in

Roberts,

had interpreted the federal probation statute as permitting increased resentencing. Thus, the Fifth Circuit had been com

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pelled to reach the constitutional claim of double jeopardy, and held that the resentencing did not subject a defendant to double jeopardy because the resentence, being authorized by statute, was “potentially a part of the original sentence.”

Roberts v. United States,

131 F. 2d 392, 393 (5th Cir. 1942),

rev’d on other grounds

320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943).

The Appellate Division of the Superior Court of New Jersey has also recently addressed the double jeopardy issue raised in this case. In

State v. Ryan,

171 N.J.Super. 427, 409 A. 2d 821 (1979), the Court considered the New Jersey probation statute, which is quite similar to Fla.Stat. § 948.-06(1). Under N.J.Rev.Stat. § 168-4, the court is empowered, upon revocation of probation, to “cause the sentence imposed to be executed or impose any sentence which might originally have been executed.” Pri- or to

Ryan,

the New Jersey Supreme Court had construed the statute to permit a probation violator to be sentenced to a longer term than was originally imposed.

In re White,

18 N.J. 449, 114 A. 2d 261 (1955).

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Ryan

held this construction to be constitutional.

In so holding, the Court emphasized that the flexibility given by the statute inured to the benefit of the defendant, and relied on Justice Frankfurter’s dissent in

Roberts

that the leniency shown to the defendant should not be condemned. The power to avoid serving any additional time or being subjected to an increased sentence was entirely within the control of the defendant, the Court stated, and it could not be said that the State acted arbitrarily in seeking the increased sentence based upon the defendant’s probation violation. The Court viewed the original sentence imposed as merely a tentative sentence, and the probationary period as a kind of continuing presentence investigation.

The Court in

Ryan

also noted that under

North Carolina v. Pearce,

395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a defendant whose conviction is reversed upon appeal can be given a more severe sentence upon reconviction than originally imposed, so long as his subsequent conduct justifies the higher sentence and retaliation for taking the appeal has not motivated the new sentence. Based on

Pearce’s

holding, the

Ryan

Court concluded that, “[b]y analogy, a sentence imposed after probation has been violated can reflect the added basis for evaluating defendant’s amenability to reform, namely, his response to probation.” 171 N.J.Super. at 436, 409 A. 2d at 825.

The analogy to

Pearce

has been previously utilized by this Court in ruling upon the same issue raised in the case

sub judice.

In

Campbell

v. Wainwright,

No. 79-2688-Civ-SMA (S.D.Fla. Sept. 17, 1979), this Court stated,

[T]he sentence was imposed following revocation of probation, but it is also recognized that double jeopardy is no bar to a greater sentence as long as vindictiveness has no part in the new sentence.

North Caroiina v. Pearce,

409 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969);

Gunsby v. Wainwright,

596 F. 2d 654 (5th Cir. 1979). The rationale of [these cases] allowing a longer sentence based on identifiable conduct not before the Court at the original sentencing should also be applicable to imposition of a sentence following revocation of probation.

Id.

at 2.

Under the authorities cited above, the Court holds that the Petitioner herein has not been subjected to double jeopardy. The cases like

North Carolina v. Pearce

indicate that only when a defendant is sentenced and then resentenced for precisely the same conduct does double jeopardy come into play. Such is not the case here, because it was the Defendant’s violation of probation that triggered the resentencing. The State of Florida has chosen to subject probation violators to the sentence which might have originally been imposed upon them in lieu of probation, and because the

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new sentence is based on the defendant’s intervening conduct, the Constitution does not prohibit this procedure.

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Accordingly, it is

ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 is DENIED.