A harsher sentence may be imposed during resentencing after an illegal sentence without violating the double jeopardy clause.
The defendant, convicted of multiple armed robberies, received an illegal sentence under unconstitutional sentencing guidelines. Upon resentencing pursuant to a prior mandate, the trial court imposed concurrent habitual offender sentences that were roughly equivalent in length to the original illegal sentences. The defendant argued that the trial court was obligated to use the guidelines because the original judge had declined to impose habitual offender status. The court applies the rule that a harsher sentence may be imposed on resentencing after an illegal sentence without violating double jeopardy. The court holds that the mandate requires sentencing in accordance with valid laws, which include statutes authorizing habitual offender sentencing, and affirms the new sentences.
At page 369 Determining proper sentencing at resentencing hearings7 citing cases“it is well established that a harsher sentence may be imposed on resentencing in such a context without violating double jeopardy.”
- Amanda Lee Hobgood v. State of Florida, 166 So. 3d 840 (Fla. 4th DCA 2015).published(It is well established that a harsher sentence may be imposed on resentencing in such a context [i.e., where the defen *844 dant’s original sentence was illegal] without violating double jeopardy.)
- Amanda Lee Hobgood v. State, No. 4D13-1395 (Fla. 4th DCA Mar. 18, 2015).published(It is well established that a harsher sentence may be imposed on resentencing in such a context [i.e., where the defendant’s original sentence was illegal] without violating double jeopardy.)
- Clark v. State, 72 So. 3d 222 (Fla. 2d DCA 2011).published(It is well established that a harsher sentence may be imposed on resentencing in such a context without violating double jeopardy.)
- Plute v. State, 53 So. 3d 1176 (Fla. 2d DCA 2011).published Plute v. State, 835 So.2d 368, 369 (Fla. 2d DCA 2003).
- Peterson v. State, 974 So. 2d 1082 (Fla. 2d DCA 2007).published“resentence [her] `in accordance with the valid laws in effect' on the date that the defendant committed the relevant offense”
- Philip Wallace Stauderman v. State of Florida, 261 So. 3d 649 (Fla. 2d DCA 2018).published(explaining that after the circuit court granted Plute's rule 3.800(a)
- Harder v. State, 14 So. 3d 1291 (Fla. 1st DCA 2009).published(finding that trial courts should conduct resentencing according to the laws in effect on the date that the defendant committed the relevant offense)
Other citing cases
- Hankins v. State, 42 So. 3d 871 (Fla. 2d DCA 2010).published
- Badia v. State, 932 So. 2d 481 (Fla. 3d DCA 2006).published
v.
STATE of Florida, Appellee.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
ALTENBERND, Judge.
Frank Plute appeals the sentences imposed after the trial court granted his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). His earlier sentences had been imposed pursuant to an open plea under the 1995 sentencing guidelines. The trial court determined that he was entitled to be resentenced under the rule announced in Heggs v. State, 759 So.2d 620 (Fla.2000). This determination was made in accordance with our mandate in Plute v. State, 765 So.2d 238 (Fla. 2d DCA 2000). On resentencing, the trial court imposed habitual offender sentences. Mr. Plute argues that the trial court could not impose[*369] habitual offender sentences at resentencing because guidelines sentences had been imposed at the first sentencing hearing. We disagree and affirm the sentences.
In the spring of 1997, Mr. Plute apparently developed a fondness for McNatt's Cleaners & Laundry establishments. He committed an armed robbery at various locations approximately once a week for two months. Eventually he was apprehended and charged in six separate informations with five armed robberies, one robbery, and one attempted robbery. The State filed a habitual offender notice.
In December 1997, Mr. Plute pleaded guilty before Judge Behnke. Facing the possibility of consecutive, habitual offender sentencing, he entered an open plea. At that sentencing hearing, Judge Behnke used a 1995 scoresheet. The range on that scoresheet was between 240.9 points and 401.5 points. Judge Behnke determined that Mr. Plute qualified for habitual offender sentencing but decided to impose multiple concurrent sentences under the guidelines. The five armed robberies each resulted in a sentence of 321.2 months or 26.76 years, and each sentence included a 3-year minimum mandatory term for use of a firearm.
When Mr. Plute received relief under Heggs, his 1994 guidelines scoresheet resulted in a significantly lower sentencing range—96 to 160 months. At the resentencing, Judge Fuente decided that adequate sentences could not be structured under the lower guidelines range. Accordingly, he elected to impose concurrent 25-year habitual offender sentences for all of the armed robberies with 3-year minimum mandatory terms for use of a firearm. Thus, the new sentencing structure produces a total sentence that is roughly equivalent to the old sentences.
Mr. Plute argues that Judge Fuente was obligated to employ the guidelines because Judge Behnke had declined to impose a habitual offender sentence. We disagree. This is not a case in which the trial court decided to impose a habitual offender sentence on revocation of probation or community control arising from an earlier legal sentence under the guidelines. Cf. King v. State, 681 So.2d 1136 (Fla.1996) (holding that guidelines sentence cannot be upgraded to habitual offender sentencing at revocation proceeding unless defendant agrees at original sentencing). Mr. Plute's original sentence was illegal, having been imposed in reliance upon an unconstitutional statute that had never been validly enacted. It is well established that a harsher sentence may be imposed on resentencing in such a context without violating double jeopardy. See State v. Swider, 799 So.2d 388 (Fla. 4th DCA 2001). The mandate in Heggs requires trial courts to resentence eligible defendants "in accordance with the valid laws in effect" on the date that the defendant committed the relevant offense. Heggs, 759 So.2d at 630-31. Unfortunately for Mr. Plute, those valid laws include the statutes authorizing habitual offender sentencing.
Affirmed.
WHATLEY and CASANUEVA, JJ., Concur.