Franklin v. StateFranklin v. State
On October 14, 1983, the defendant was sentenced as a youthful offender to two concurrent terms of three years in a youthful offender facility to be followed by three years community control. After the defendant had completed the incarcerative portions of his youthful offender sentences and while on community control, affidavits of violations were filed to which the defendant entered a plea of guilty. The defendant elected to be resentenced under the guidelines and a sentencing guidelines scoresheet was prepared which scored the defendant in the twelve to seventeen year range. The range would have been seventeen to twenty-two years with a one cell enhancement for violation of probation. The defendant was sentenced to two concurrent terms of fifteen years incarceration, with credit for time served. A notice of appeal was filed and the public defender filed an Anders1 brief on the defendant‘s behalf.
After reviewing the file as required by State v. Causey, 503 So.2d 321 (Fla. 1987), we directed the public defender to file a supplemental brief addressing the applicability of Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987),2 and Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987).3 In Poore, a youthful offender was sentenced to a term of four and one-half years, with the incarcerative portion of the sentence suspended after two and one-half years and the defendant placed on probation for two years. After serving his period of confinement, the defendant in Poore was placed on probation which he proceeded to violate. The defendant elected to be “resentenced” under the guidelines, but this court held that the defendant had no right to elect, as there was no authority or necessity to impose a second sentence. Instead, the court held that the defendant should have been recommitted to serve the remainder of the suspended sentence. In addition, in dictum in Poore, the court stated that
The defendant in Wayne was sentenced to thirty months incarceration to be followed by two and one-half years probation. After serving his thirty months, the defendant was released on probation which he subsequently violated. The trial court “resentenced” the defendant to four years incarceration but this court vacated the sentence and ordered the defendant discharged, relying on Poore. The court held that since there was no suspended period of confinement left to be served, as there had been in Poore, the defendant could not constitutionally be sentenced a second time to further incarceration for the same offense, merely because he had violated the probation appended to a lawful sentence. That holding renders the probation imposed subsequent to incarceration a nullity, because the trial judge has no power to impose a penalty for its violation, and we conclude that such result is in conflict with established precedent and logic.
In State v. Payne, 404 So.2d 1055 (Fla. 1981), the Florida Supreme Court addressed the question of whether double jeopardy was involved when sentencing a defendant after revocation of probation. The defendant in Payne was sentenced to one year imprisonment which was “suspended” and the defendant was placed on three years probation. When the defendant‘s probation was revoked because of a violation, and a five year prison term imposed, the defendant claimed that the new sentence violated the double jeopardy clauses of the United States and Florida Constitutions and that he could not be resentenced to more than the originally imposed one year imprisonment. However, the court in Payne found that double jeopardy comes into play only when a defendant is sentenced and then resentenced for precisely the same conduct, as discussed in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). On the other hand, where a defendant‘s own actions in violating probation have triggered the resentencing, the court found that the state of Florida has chosen to subject the probation violator to any sentence which might have originally been imposed. Since the new sentence is based on the defendant‘s intervening conduct, neither the United States nor Florida constitutions prohibit such action. Payne, 404 So.2d at 1057.
The court in Payne expressly adopted the reasoning of Justice Frankfurter in his dissent in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943),5 in which he said:
We certainly should not countenance the notion that a probationer has a vested interest in the original sentence nor encourage him to weigh the length of such a sentence against any advantages he may find in violating his probation. To bind the Court to such a sentence is undesirable in its consequences and violative of the philosophy of probation.
Id., 320 U.S. at 274, 64 S.Ct. at 118. In conclusion, the court in Payne found that it was the defendant‘s conduct which resulted in the stiffer second sentence, and such a sentence does not offend the safeguards of the Fifth Amendment. See also Williams v. Wainwright, 650 F.2d 58 (5th Cir.1981) (increased sentence of incarceration after revocation of probation which followed imprisonment does not violate the Fifth or Fourteenth Amendment prohibition against double jeopardy since the increase is based on defendant‘s subsequent conduct). The same reasoning applies in this case. Because it was the defendant‘s own behavior
In Wayne, the court suggests that the sentencing form set out in
However, in State v. Jones, 327 So.2d 18 (Fla. 1976), overruled on other grounds, Villery v. Parole and Probation, 396 So.2d 1107 (Fla. 1981), the court specifically rejected this asserted necessity of suspending a portion of a split sentence. In Jones, the defendant was sentenced to one year in the county jail to be followed by five years probation. The trial court in Jones then reconsidered and reduced the jail time to time served, but continuing the five years probation. The Jones court held that a trial judge is not required to impose a total sentence and then immediately withhold a portion for use in the event that probation is violated, since such a requirement would conflict with
Likewise, in Payne, the court affirmed the sentence of five years incarceration after revocation when the original sentence was only one year followed by three years probation. Again the court held that the defendant could be sentenced upon revocation to any term which could have originally been imposed. Conspicuously, the court made no mention in Payne of any requirement to withhold a portion of the incarceration. It appears clear, therefore, that
Having considered and rejected any double jeopardy or split sentence problems in this case, the next question is whether the defendant‘s sentence is proper since he was initially sentenced under the Florida Youthful Offender Act.8 This court, in Johnson v. State, 482 So.2d 398 (Fla. 5th DCA 1985) specifically held that a defendant originally sentenced as a youthful offender may, upon violation of a term of probation or community control, be resentenced in accordance with
At the time the defendant in this case was originally sentenced as a youthful offender, the sentencing guidelines specifically provided that sentences under the Youthful Offender Act need not conform to the guidelines.10 As of July 1, 1984, the guidelines were amended to require that youthful offender sentences be in conformity with the guidelines.11See State v. Weston, 510 So.2d 1001 (Fla. 3d DCA 1987). The defendant in this case affirmatively elected to be resentenced under the guidelines. See Solomon v. State, 490 So.2d 1025 (Fla. 1st DCA 1986). Furthermore, the guidelines are specifically made applicable to any sentence imposed after revocation of probation.12 The defendant‘s sentence of fifteen years was clearly within the guidelines in effect at the time of his resentencing.13See Thomas v. State, 482 So.2d 404 (Fla. 5th DCA 1985), rev. denied, 491 So.2d 281 (Fla. 1986); Saavedra v. State, 478 So.2d 479 (Fla. 4th DCA 1985); Wahl v. State, 474 So.2d 328 (Fla. 2d DCA 1985); Cone v. State, 469 So.2d 945 (Fla. 5th DCA 1985).
In conclusion, we find that a defendant may be sentenced to a term of incarceration to be followed by a period of probation and if the probation is violated after the term of incarceration has been completed,
HAVING SENTENCED A DEFENDANT TO A TERM OF INCARCERATION FOLLOWED BY PROBATION OR COMMUNITY CONTROL, MAY THE COURT AFTER A VIOLATION OF THE PROBATION OR COMMUNITY CONTROL, IMPOSE ANY SENTENCE WHICH COULD HAVE BEEN ORIGINALLY IMPOSED WITH CREDIT FOR TIME SERVED AND MUST SUCH SENTENCE BE WITHIN THE GUIDELINE RANGE UNLESS VALID REASONS FOR DEPARTURE ARE GIVEN
AFFIRMED. QUESTION CERTIFIED.
SHARP, C.J., and DAUKSCH, COBB and DANIEL, JJ., concur.
COWART, J., dissents.
COWART, Judge, dissenting.
I can neither conceptualize nor rationalize a constitutional basis for upholding any procedure by which, as punishment for one conviction of one crime, a defendant can be sentenced to one definite term of confinement with a provision that thereafter, depending on some subsequent event such as violation of court-imposed conditions on the defendant‘s liberty, he can again and again be haled back into court and each time again be sentenced for “the same offense” to further periods of confinement, the length of each successive period to be determined and set by each succeeding sentence. The imposition of second and subsequent sentences of confinement based on one conviction of one criminal offense cannot be legally rationalized or justified as being “the result of defendant‘s subsequent actions.” The double jeopardy clauses of the state and federal constitutions prohibit the imposing of such successive, multiple sentences for “the same offense.”
I have no particular dispute with Judge Orfinger‘s well-written opinion but prefer the reasoning and result in the cases from which this court recedes. I hope that the Supreme Court of Florida will, if necessary, reconsider Jones and Payne, cited in the majority opinion, which I cannot read to uphold a procedure for the imposition of multiple, successive sentences of confinement based on one conviction of one criminal offense.