Ashley v. State

• Decision Date: 09 January 2003
• Docket Number: No. SC00-2586.,SC00-2586.
• Citation: 850 So.2d 1265
• Parties: Columbus Rickey ASHLEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

850 So.2d 1265

Columbus Rickey ASHLEY, Petitioner, v. STATE of Florida, Respondent.

No. SC00-2586.

Supreme Court of Florida.

January 9, 2003.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.

Charlie Crist, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Respondent.

QUINCE, J.

We have for review Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000), which expressly and directly conflicts with the decision in Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we approve the decision in Evans and quash the decision in Ashley.

The issue in these two cases concerns whether a trial court can bring a defendant back to court, vacate the sentence imposed, and resentence him to what amounts to a more onerous sentence after he has begun serving the original sentence, without violating the double jeopardy clause. The facts of Ashley are as follows. Columbus Ashley was charged with possession of a firearm by a convicted felon. Prior to trial, the State filed a notice of intent to classify Ashley as a habitual violent felony offender (HVFO) based on a previous robbery conviction. At trial, the jury found Ashley guilty as charged on the possession offense.

Ashley's status as a possible habitual violent felony offender was argued to the trial judge by the prosecutor. The trial judge was presented with Ashley's criminal history, and aggravating and mitigating circumstances were discussed. Defense counsel acknowledged that Ashley had two prior felony convictions: robbery and possession of cocaine. An argument was made to the trial court that it had discretion in whether to find and sentence Ashley as a habitual violent felony offender. At no time during this hearing on July 8, 1999,¹ or the actual sentencing on July 9, 1999, did the trial court pronounce Ashley a habitual violent felony offender.

At the sentencing hearing on July 9, 1999, the trial court again indicated the factors that supported aggravation and those in support of mitigation. The court then orally sentenced Ashley as a habitual felony offender (HFO), and sentenced him to twenty-five years in prison. The prosecutor was present and did not bring to the court's attention any failure to find Ashley a habitual violent felony offender. The only issues addressed by the State at this point were restitution and a nolle pros of the remaining counts. The final statement made by the trial judge was, "Take Mr. Ashley back to begin his sentence."

However, the written judgment and sentence indicated that Ashley had been sentenced as an HVFO to twenty-five years in prison with no minimum term noted on the written sentencing form. On July 12, 1999, Ashley reappeared in court, and the trial judge orally resentenced him to twenty-five years in prison as an HVFO, and for the first time imposed a ten-year minimum mandatory term. The July 12 written sentencing order was consistent with the court's July 12 oral pronouncement.

Ashley filed a timely notice of appeal on July 15, 1999. After notice was given, but before the initial brief was filed, Ashley filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging that the resentencing on July 12, 1999, constituted a double jeopardy violation. The trial court did not rule on the motion; therefore, it was deemed denied. Ashley raised the double jeopardy claim on his direct appeal. See Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000). The First District rejected this claim, finding that the trial court's imposition of an HFO sentence "was the result of a simple mistake about what had been noticed and then proven the day before. It was not a discretionary judgment based on the facts to impose a lighter sentence." Id. at 43.

The First District's holding in Ashley is in conflict with the Fourth District's holding in Evans. In Evans, the defendant pled and was adjudicated guilty for possession of cocaine and aggravated battery. As part of the plea agreement, Evans agreed that he qualified as an HFO, and that he would be sentenced as an HFO if he violated probation. Evans violated his probation and was sentenced to prison time as an HFO. The sentences were suspended, and Evans was given probation; however, the judgment of HFO status was never set aside. As a result, and by agreement of the parties, the court vacated the suspended sentences, allowing Evans to be resentenced on his initial violation of probation. At resentencing, the trial court did not state that Evans was being sentenced as an HFO; however, the written order did reflect that he was being habitualized. Two days later, the State filed a motion to clarify the sentence because the commitments prepared by the court clerk did not reflect habitualization. Evans objected on grounds of double jeopardy, recalling that the court's oral pronouncement did not mention habitualization. The trial court then ordered that the commitments be amended to reflect habitualization.

On appeal, the Fourth District recognized that the trial court's failure to impose habitualization during oral pronouncement may have been an oversight. Nevertheless, the Fourth District found the trial court's clarification to be in error, holding that once a legal sentence is imposed, jeopardy attaches and the defendant cannot be resentenced to a greater term of imprisonment.

We agree with the reasoning of the Fourth District. Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. See, e.g., Lippman v. State, 633 So.2d 1061 (Fla.1994); Clark v. State, 579 So.2d 109 (Fla.1991); N.H. v. State, 723 So.2d 889 (Fla. 5th DCA 1998). To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense. See State v. Wilson, 680 So.2d 411, 413 (Fla.1996). Here, the trial court brought Ashley back to court and resentenced him to a more onerous sentence after he had begun serving the original sentence. The trial court's actions violated Ashley's constitutional right against double jeopardy.

This Court has previously found that Florida's sentencing procedures prevent subsequent imposition of new terms to a previously announced sentence. For example, in Justice v. State, 674 So.2d 123 (Fla.1996), the defendant was found guilty of two counts of forgery and placed on probation, subject to three conditions. However, the trial court entered a written judgment which contained numerous probation conditions not orally pronounced at sentencing. On appeal, the Fifth District remanded the case to the trial court to resolve the discrepancy between the probation conditions imposed at sentencing and those contained in the written order. Although the Fifth District held that the trial court could reimpose the unannounced conditions at resentencing, it certified the issue to this Court as a question of great public importance.

Upon review, this Court held that special conditions of probation must be imposed at sentencing and may not be reimposed at resentencing. This Court based its decision in part "on a judicial policy that the actual oral imposition of sanctions should prevail over any subsequent written order to the contrary." Id. at 125. This Court further noted that written sentences are usually just a record of the actual sentence required to be pronounced in open court.² Thus, when conflict arises between the written sentence and the oral pronouncement, the oral pronouncement prevails.

This Court further noted that the subsequent imposition of new conditions or terms to a sentence or order of probation violates the constitutional protection against double jeopardy. Adopting the reasoning of the dissent in the Fifth District's opinion, this Court opined:

An order of probation, like any other aspect of sentencing, ought not to be a work in progress that the trial court can add to or subtract from at will so long as he or she brings the defendant back in and informs the defendant of the changes. To permit this would mean a lack of finality for no good reason and multiple appeals. It is not too much to ask of a sentencing judge to decide on and recite the special conditions of probation at the sentencing hearing, just as is done with the balance of the sentence. If the court has omitted a condition it wishes it had imposed, its chance has passed unless the defendant violates probation.

Id. at 126 (quoting Justice v. State, 658 So.2d 1028, 1035-36 (Fla. 5th DCA 1995) (Griffin, J., dissenting)). We also find this reasoning persuasive. Our decision today is consistent with this reasoning and with our earlier precedent.

Additionally, the First District's decision in this case conflicts with a longstanding principle of law—that a court's oral pronouncement of sentence controls over the written document. See, e.g., State v. Jones, 753 So.2d 1276, 1277 (Fla.2000); State v. Williams, 712 So.2d 762 (Fla. 1998); Justice, 674 So.2d at 126; Driver v. State, 710 So.2d 652, 653 (Fla. 2d DCA 1998). Generally, the oral pronouncement prevails unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit. See Martindale v. State, 678 So.2d 883, 884 (Fla. 4th DCA 1996).³

We recognize that the trial court's failure to state during its oral pronouncement of sentence that it was sentencing Ashley as a habitual violent felony offender may have been a simple mistake. However, based on the prior precedent from this Court, we must approve the Fourth District's opinion in Evans and disapprove the First District's decision in Ashley, because the oral pronouncement of sentencing controls. To hold otherwise does serious harm to...