DANIEL CLIVE LYTTLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1977-12-09
No. 76-1995
SCHEB and DANAHY, JJ., concur.
352 So. 2d 942 Florida District Court of Appeal, Second District (1977) Positive Treatment
Cited by 8 cases

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Synopsis

Daniel Lyttle was convicted of rape and sentenced to life imprisonment. After his initial conviction was reversed on appeal, he was retried, convicted again, and sentenced to consecutive life imprisonment without credit for time served. The appellate court held that the consecutive sentence violated the prohibition on enhanced sentences after retrial established in North Carolina v. Pearce, and that he was entitled to credit for time served.


Holding

The consecutive life sentence constituted an impermissible enhancement of the sentence in violation of North Carolina v. Pearce and must be made concurrent with other sentences. The defendant is entitled to credit for time served from initial incarceration, even when the sentence is for life.


Headnotes

[1] A trial court commits error by imposing a more severe sentence upon a defendant after a new trial unless the factual data supporting the increased sentence is affirmative…

[2] A trial court must credit a defendant with time served when imposing sentence for reconviction of the same offense.

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Key Quotes

“Whether a life sentence is concurrent or consecutive with other sentences may affect a future decision of the Parole and Probation Commission to grant or deny appellant parole. The determination that appellant's new sentence must be served consecutively to the other three had the effect of enhancing the severity of the sentence because prior to the reversal of his original life sentence, all four sentences were concurrent.”

Explains why the consecutive sentence constitutes an enhancement subject to Pearce restrictions

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Facts & Procedural History

Lyttle was charged with forcible rape in 1974. His first trial resulted in a mistrial due to jury deadlock. His second trial resulted in conviction an…

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Opinion of the Court
GRIMES, Acting Chief Judge.

GRIMES, Acting Chief Judge.

In 1974 appellant was charged by information with forcible rape contrary to Section 794.01, Florida Statutes (1973). A mistrial in the first trial of the case was declared when the jurors were unable to reach a verdict. Appellant’s second trial resulted in a conviction. Appellant was adjudicated guilty and sentenced to life in prison with credit for time served. On appeal this court reversed and granted appellant a new trial. Lyttle v. State, 320 So. 2d 424 (Fla.2d DCA 1975).

After appellant’s conviction in the second trial, but prior to the reversal of that conviction by this court, appellant was sentenced to three four-year prison terms for inciting to commit perjury, tampering with a state witness and concealing evidence. The sentencing judge directed that these sentences be served concurrently with the previously imposed life sentence.

Another mistrial occurred during a third trial. Appellant’s fourth trial resulted in a conviction, and he was again sentenced to life in prison. The judgment and sentence provided, “Not to receive credit for time served. Said sentence to run consecutive to sentence now serving.”

In this appeal appellant argues that it was error for the trial court to impose a consecutive life sentence upon re-conviction because it amounts to an enhancement of his previously reversed life sentence. Appellant further contends that it was error to deny him credit for time served. He relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in support of both arguments. We agree.

Whether a life sentence is concurrent or consecutive with other sentences may affect a future decision of the Parole and Probation Commission to grant or deny appellant parole. The determination that appellant’s new sentence must be served consecutively to the other three had the effect of enhancing the severity of the sentence because prior to the reversal of his original life sentence, all four sentences were concurrent. Whenever a trial judge imposes a more severe sentence upon a defendant after a new trial, the factual data upon which the increased sentence is based must affirmatively be made part of the record. North Carolina v. Pearce, supra. Since the trial judge did not articulate his reasons for imposing consecutive time, the most he could do was to impose a concurrent life sentence.

It was also error to deny appellant credit for time served. The constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully credited in imposing sentence for reconviction of the same offense. North Carolina v. Pearce, supra; cf. Section 921.161(1), Florida Statutes (1973). The fact that the sentence is for life does not diminish the requirement to allow credit for time served. Jenkins v. State, 346 So. 2d 1055 (Fla.2d DCA 1977). Appellant is entitled to receive credit time since his initial incarceration. Marshall v. State, 310 So. 2d 55 (Fla.2d DCA 1977).

We have examined the other issues raised by appellant in this appeal and consider them to be without merit.

We affirm appellant’s conviction but remand this case to the trial court with directions to correct appellant’s sentence by making it concurrent with his other sentences and by specifying the amount of credit time. Appellant need not be present for this purpose.

SCHEB and DANAHY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kinney v. State, 458 So. 2d 1191 (Fla. 2d DCA 1984)
    …appeal and remanded for resentenc-ing, the trial court is without authority on remand to make the sentences consecutive without articulation of valid reasons for the change. See Holloway v. State, 360 So. 2d 140 (Fla. 2d DCA 1978); Lyttle v. State, 352 So. 2d 942 (Fla. 2d DCA), cert. denied, 357 So. 2d 186 (Fla. 1977). We note that because the grand theft sentence should be served concurrently with the attempted murder sentence, defendant should have been credited on both sentences for time served. See Marti…
  • Holloway v. State, 360 So. 2d 140 (Fla. 2d DCA 1978)
    …ber 74-4334 began to run at the same time as did the sentence imposed in case number 75-2672, under the new sentences the time to be served will not commence until after the sentence in ease number 75-2672 has been served. [*142] In Lyttle v. State, 352 So. 2d 942 (Fla. 2d DCA 1977), this court held that a judge may not issue a greater sentence after retrial than that which was originally imposed unless he is able to cite facts concerning the defendant’s behavior which have come to light since imposition of t…
  • Phillips v. State, 550 So. 2d 55 (Fla. 5th DCA 1989)
    …S.Ct. 2201, 104 L.Ed.2d 865 (1989); Fraley v. State, 426 So. 2d 983 (Fla. 3d DCA 1983). . See, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Pilgrim v. State, 516 So. 2d 75 (Fla. 5th DCA 1987); Lyttle v. State, 352 So. 2d 942 (Fla. 2d DCA 1977), cert. denied, 357 So. 2d 186 (Fla.1978).…

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