Beech v. State
| Decision Date | 28 July 1983 |
| Docket Number | Nos. 61925,62128,s. 61925 |
| Citation | 436 So.2d 82 |
| Parties | Charles F. BEECH and Fred Pendley, Petitioners, v. STATE of Florida, Respondent. Donald Lee ADAMS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for Beech.
Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for Adams.
Jim Smith, Atty. Gen., and Barbara Ann Butler, Jacksonville, and Gregory C. Smith, Tallahassee, Asst. Attys. Gen., for respondent.
These consolidated cases are before the Court on petitions for review of two decisions of the District Court of Appeal, First District, * both of which passed upon questions which the district court certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
In separate criminal proceedings all three petitioners were placed on probation but were required to serve lengthy terms in prison as conditions of their probation, followed by continued terms of ordinary probation. Such punishment is referred to as the "split sentence alternative." All three petitioners successfully challenged the validity of these orders under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). On remand to the trial courts, each petitioner was sentenced to a term of imprisonment longer than the originally required period of incarceration but no longer than the original combined term of incarceration and probation. The petitioners appealed, contending that their sentences constituted increased criminal penalties following appeal and were in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The district court of appeal affirmed the sentences and in both cases (two of the appeals having been consolidated by the district court) certified the following questions to be of great public importance:
1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the period of imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the corrected sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce ?
Adams v. State, 414 So.2d at 1081; Beech v. State, 411 So.2d at 1385-86. Our answer to these questions is that in correcting a voidable order of punishment for a criminal offense a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation and that the sentences imposed in these cases did not deprive the petitioners of due process of law.
In North Carolina v. Pearce, the United States Supreme Court held that at a new trial following a successful appeal, a convicted person may not be given a sentence more severe than that originally imposed unless it is "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." 395 U.S. at 726, 89 S.Ct. at 2081. The purpose of this holding was to assure that convicted persons could take an available appeal without fear of retaliation from the sentencing judge.
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
Id. at 725, 89 S.Ct. at 2080 (footnote omitted). Thus it is not the more severe penalty itself but rather the use of the fear of a more severe penalty to deter the exercise of the right of appeal that concerned the Court under principles of due process.
For Pearce to be applicable, then, there must be some connection between the imposition of a more severe sentence and the defendant's exercise of some right. When the defendant has not sought to have his sentence vacated or modified but the court imposes a more severe sentence to replace an illegal sentence on its own motion or on motion of the state, Pearce is inapplicable. E.g., Blankenship v. Parratt, 554 F.2d 850 (8th Cir.1977); Bell v. United States, 521 F.2d 713 (4th Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); State v. Pina, 440 A.2d 962 (Conn.1981); State v. Blankenship, 195 Neb. 329, 237 N.W.2d 868 (1976). However, when a defendant is resentenced after having the original sentence vacated on the ground that the sentencing judge relied on a conviction that was subsequently set aside, Pearce is applicable. United States v. Durbin, 542 F.2d 486 (8th Cir.1976); Commonwealth v. Brown, 445 Pa. 274, 314 A.2d 506 (1974). In such cases the threat of a more severe sentence may deter a convicted person from seeking to vindicate his right to be sentenced only on the basis of valid considerations. Therefore, Pearce applies to sentencing proceedings that are held as a result of the convicted person's having pursued his constitutional or statutory rights regarding sentencing.
In the instant cases the petitioners invoked their rights to have their orders of probation with incarceration corrected after Villery declared certain punishments of this variety to be illegal under the applicable statutes. In Villery we held that the period of incarceration that may be imposed as a condition of probation is limited to less than one year. The opinion went on to explain the practical consequences of our construction of the pertinent statutes:
Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla.Stat. (1979).
By placing a limitation on the sentence that could be imposed in place of such an illegal "split sentence," the Villery decision gave effect to the principle of Pearce that vindictiveness should play no part in the resentencing of a convicted person. However, in Villery we were faced with a unique problem that was not considered by the Supreme Court in Pearce. Under Pearce, when a person is being sentenced after a second trial brought about by the taking of a successful appeal, a sentence identical to the sentence originally imposed creates no due process problem. In the present cases, "resentencing" was necessary because the punishments originally imposed were illegal under Villery. In other words, by declaring a category of split sentences illegal, we took away the alternative of imposing sentences identical to those originally imposed.
Implicit in the Villery decision is the principle that if incarceration is the real objective of the judge's order, such objective should be achieved through a sentence of imprisonment and not through a probation order with a lengthy period of incarceration as a condition of probation. The latter alternative was seen as a device for defeating the jurisdiction of the Parole and Probation Commission and thus violated legislative intent if the incarceration required was of a period of one year or more.
In the present cases, therefore, the sentencing judges were required to impose sentences that were inherently different in kind from the original orders of probation with incarceration. Because of the differences between such an order of probation and a sentence of imprisonment, it is impossible to devise a formula for precisely ranking the various sentencing alternatives according to degree of severity. The single factor common to both kinds of treatment is the total period of time the convicted person is under state supervision. So, in Villery we concluded that any sentence of imprisonment should be no longer than the original combined term of incarceration and probation. We do not believe that any further limitation is needed in order to avoid having a deterrent effect on a defendant's exercise of his right to have his original illegal order corrected. When a sentence is imposed within this guideline, although it may be harsher than the original order in some respects, we will presume that it was not rendered out of vindictiveness.
Since there is no evidence in the records of these cases to show that the sentences here in question are both more severe than the original punishments and were imposed to retaliate against the petitioners for having pursued their rights, the presumption of correctness stands. We therefore hold that these sentences did not deprive petitioners of due process. Accord Stuckey v....
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