MYLES C. ANDREWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court cannot set aside a prior sentence and impose a new, increased sentence after the defendant has begun serving the original sentence.
Appellant was sentenced to nine months for resisting arrest without violence and began serving the sentence. The trial court later realized it failed …
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PER CURIAM.
This is an appeal from an allegedly illegal sentence imposed following conviction of resisting arrest without violence under Florida Statute § 843.02. The trial court initially sentenced appellant to serve nine months in the county jail, but failed to allow credit for jail time served as required by § 921.161(1), Florida Statutes (1975). At that time, defendant was taken by the bailiff across the street to the county jail where he began serving his sentence. Subsequently, the public defender brought to the court’s attention the fact that it neglected to give credit for 54 days of jail time served. The court then set aside its prior sentence and re-sentenced the defendant/appellant to serve ten months imprisonment with credit for 54 days jail time.
Under this Court’s decision in Flowers v. State, 351 So. 2d 387 (1st DCA 1977), the trial court had no authority to set aside its prior sentence and impose a new and different sentence increasing the time to be served.
Accordingly, the sentence of ten months with credit for time served is set aside and the cause remanded with directions to the trial court to impose a sentence of nine months with credit for 54 days jail time. The appellant need not be present for this purpose.
MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By (11 total)
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Vermon T. Donald v. State, 562 So. 2d 792 (Fla. 1st DCA 1990)…r v. State, 457 So. 2d 1361 (Fla.1984); Beech v. State, 436 So. 2d 82 (Fla.1983); Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Daniels v. State, 513 So. 2d 244 (Fla. 2d DCA 1987); Padgett v. State, 497 So. 2d 724 (Fla. 1st DCA 1986); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978); and Flowers v. State, 351 So. 2d 387 (Fla. 1st DCA 1977); see also, Annot., 28 ALR4 147 (1984); Annot., 26 ALR4 905 (1983). The primary issue raised by appellant is whether a sentence for a felony of the first degree under the…
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Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)…e of sentence on the day following conclusion of sentencing hearing); Buckbee v. State, 378 So. 2d 39 (Fla. 3d DCA 1980) (court without jurisdiction to increase sentence five months after termination of initial sentencing hearing); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978) (court “had no authority” to increase sentence after defendant taken across the street to county jail where he began serving sentence)6; Flowers v. State, supra (court “without power” to increase sentence two days after hearing a…
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Cherry v. State, 439 So. 2d 998 (Fla. 4th DCA 1983)…eopardy clause of the fifth amendment to the United States Constitution. See, e.g., Troupe v. Rowe, 283 So. 2d 857 (Fla.1973); Royal v. State, 389 So. 2d 696 (Fla. 2d DCA 1980); Gonzalez v. State, 384 So. 2d 57 (Fla. 4th DCA 1980); Andrews v. State, 357 So. 2d 489 (Fla. 1st DCA 1978); Flowers v. State, 351 So. 2d 387 (Fla. 1st DCA 1977); Katz v. State, 335 So. 2d 608 (Fla. 2d DCA 1976). The few instances where the increase has been upheld include Rizzo v. State, 430 So. 2d 488 (Fla. 1st DCA 1983), where the j…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knoblock v. Paree W. Knoblock, 351 So. 2d 387 (Fla. 1st DCA 1977)