Nelson v. StateNelson v. State
Ernie H. Nelson challenges his convictions and sentences growing out of his arrest for possessing an open container of a malt liquor beverage during which he spat on one of officers involved. We affirm his convictions without discussion, but reverse his sentence of four years in state prison for battery upon a law enforcement officer.1 Following is the chronology of events which resulted in deprivations of Nelson‘s constitutional rights and the usurpation of the jurisdiction of this court:
1) September 9, 1997: Nelson is given a guidelines sentence on the felony of twenty-four months in state prison.
2) September 24, 1997: Upon Nelson‘s challenge to his guidelines scoresheet, the sentence is reduced to twenty-three months.
3) October 7, 1997: Nelson‘s sentence is further reduced to fifteen months upon his motion to correct sentence.
4) October 10, 1997: Nelson files his notice of appeal of the judgment and sentence.
5) October 29, 1997: Upon the State‘s discovery of overlooked prior convictions, Nelson‘s guidelines scoresheet is rescored and, without notice to Nelson, his sentence is increased to forty-eight months in state prison.2
Nelson‘s insistence upon representing himself on plenary appeal has resulted in a nearly
The transcript of the final sentencing hearing suggests that the trial court, while unsure of its jurisdiction to alter the terms of the sentence while the direct appeal was pending in this court, relied upon the State‘s conclusion that the trial court retained jurisdiction for sixty days after sentencing to modify the sentence pursuant to
At the same time, the State and the trial court ignored an equally fundamental precept of our constitutional law which inheres in the Double Jeopardy Clauses of the U.S. and Florida Constitutions. Resentencing a criminal defendant to a greater term of imprisonment because of an error in calculating the guidelines scoresheet is constitutionally impermissible. See Navarrete v. State, 707 So.2d 803 (Fla. 1st DCA 1998). Navarrete applies this principle to matters overlooked in the preparation of scoresheets, but there is nothing novel about the constitutional proscription against increasing criminal sentences, and this court has consistently disapproved the practice in a variety of contexts. See Gallup v. State, 696 So.2d 803 (Fla. 2d DCA 1997); Coll v. State, 629 So.2d 1056 (Fla. 2d DCA 1993); Ayala v. State, 585 So.2d 483 (Fla. 2d DCA 1991); Westover v. State, 521 So.2d 344 (Fla. 2d DCA 1988); Van Buren v. State, 500 So.2d 732 (Fla. 2d DCA 1987); Hinton v. State, 446 So.2d 712 (Fla. 2d DCA 1984).
The record discloses that Nelson‘s attorney was provided one day‘s notice of the proceeding which resulted in the increase in Nelson‘s sentence, and counsel made it clear that he was not waiving Nelson‘s right to appear and be heard. Where within the Department of Corrections Nelson resided at the time was unknown to any of the principals, and it is undisputed that no effort was made to procure his attendance. Sentencing is a critical stage of a criminal prosecution for which the defendant has a constitutionally protected right to attend, and his attendance is mandated by our criminal rules. See
The foregoing double jeopardy considerations require that Nelson‘s sentence for battery upon a law enforcement officer may not exceed the fifteen-month term imposed on October 7, 1997. We vacate the subsequently imposed sentence of forty-eight months, and order the trial court to enter a sentence of fifteen months, concurrently, as had been directed all along, with the sentence on the accompanying misdemeanor.
Convictions and misdemeanor sentence affirmed; felony sentence reversed and remanded with directions.
CAMPBELL, A.C.J., and THREADGILL and CASANUEVA, JJ., Concur.