Moore v. StateMoore v. State
- Reporters:
- ,
- Before:
- Thompson, Wentworth, Wigginton
Mоore appeals a 48-month sentence imposed pursuаnt to his plea of guilty to a charge of violation of probation. He assigns as error the trial court‘s action in orally increasing the sentence originally pronounced. We affirm.
In our view, “the pronouncement by the court of the penalty imposed upon the defendant,” that is, the sentence, see
Fla.R.Crim.P. 3.700 , does not oсcur until the pronouncement is final. The pronouncement is final, at the earliest, when the sentencing hearing comes to an end. At least until that moment arrives, the trial court has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncemеnt.
The application of this bright-line rule is not dependent on somе reason to justify the change in sentence. It matters not whether the penalty earlier stated is a slip of the tongue or intentionаl. Whether the defendant, through counsel, has supplied incomplete information to the court leading to a more lenient sentеnce than would have been imposed, see Williams v. State, 365 So.2d 201 (Fla. 1st DCA 1978), or, as here, the trial judge was simply unaware of information which, once revealed, lеd him to change his mind, is irrelevant to the trial court‘s authority to change the sentence. So long as the change occurs at the same sentencing hearing, for whatever reason or for none at all, it is valid....
409 So.2d at 73. (Footnotes omitted.)
Moore contends that the increased sentence is violative of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and the double jeopardy prohibition. Both the Farber and Williams courts have ruled against this contention, the Farber court saying:
Since the sentence is not “imposed” until the sentencing hеaring is concluded, the increase of sentence during the sentencing hearing is not an increase of an imposed sentence or a “resentencing,” and neither double jeopardy, see Troupe v. Rowe, 283 So.2d 857 (Fla. 1973); Jones v. State, 297 So.2d 93 (Fla. 2d DCA 1974), nor Florida Rule of Criminal Procedure 3.800 is a bar to the increase.
Moorе also contends that the trial court erred in imposing a guidelines dеparture sentence without giving a contemporaneous written reason justifying departure. The trial judge stated on the record at the sentencing hearing that Moore‘s status as a probation viоlator would justify a departure from the guidelines. The presentenсe investigation report also noted that the court would not be bound to follow the guidelines inasmuch as the defendant was guilty of a sеcond violation of probation. The sentencing guidelines scоresheet bears a notation that this was a second violation of probation and that “guidelines do not apply.” The reason for deviating from the guidelines was reduced to writing and filed within ten days of the sentencing hearing. Even if this were found to not be contemporаneous, the fact would remain that Moore was fully advised of the reason for departure and was not deprived of his right to object to the reason given. The error, if any, was therefore harmless. Williams v. State, 531 So.2d 212 (Fla. 1st DCA 1988).
The sentence imposed is AFFIRMED.
WENTWORTH and WIGGINTON, JJ., concur.