Davis v. Wainwright, 81-1641
| Decision Date | 19 January 1982 |
| Docket Number | No. 81-1641,81-1641 |
| Parties | Willis L. DAVIS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for petitioner.
Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for respondent.
Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
By habeas corpus proceeding petitioner challenges the court's authority to reimpose an original sentence after he has served the sentence as mitigated. 1
On September 15, 1973 petitioner, Willie Davis, was adjudicated guilty of robbery and possession of a firearm while engaged in a robbery. On December 14, 1973 he was sentenced to ten years of imprisonment on each count, the sentences to run concurrently.
On February 13, 1974, exactly sixty days after sentencing, defendant filed a notice of appeal. On March 28, 1974 while the appeal was still pending, the trial court granted defendant's motion for mitigation, which motion had been filed on December 19, 1973 and heard on January 21, 1974. The trial court reduced the sentence for robbery from ten years to five years imprisonment and reduced the sentence for firearm possession from ten years imprisonment to a five-year period of probation to run consecutive to the robbery sentence.
Petitioner was paroled on April 20, 1976 to complete a five-year period of probation. In June of 1977 he was arrested on new charges of battery and released on bond. He left the jurisdiction and was re-arrested in the state of Georgia on February 5, 1981 for violating the conditions of bond. The state did not prosecute the battery charges.
On April 28, 1981, petitioner's probation was revoked for violation of the bond conditions and he was sentenced to five years imprisonment. Petitioner filed a motion to vacate the sentence and conviction for possession of a firearm while committing an offense on the grounds that the firearm possession offense involved the same criminal act as a necessary element of the offense of robbery. The trial court agreed that defendant could not be sentenced on the second charge, see James v. State, 399 So.2d 424 (Fla. 5th DCA 1981); Monroe v. State, 396 So.2d 241 (Fla.3d DCA 1981); Jenrette v. State, 390 So.2d 781 (Fla.3d DCA 1980), and granted the motion thereby vacating the five-year sentence which had been imposed for probation violation. After vacating the sentence for violation of probation, the trial court reimposed the ten-year sentence on the robbery charge. The sentence for the robbery charge had been mitigated to five years and already served by the defendant.
In reply to the writ respondent makes two arguments. It is first suggested that because the trial court in 1974 may not have had authority to rule on a motion to mitigate, reinstatement of the initial sentence on Count I was proper.
The ability of a trial court on finding violation of parole to revoke probation and impose any sentence which might have originally been imposed, Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980), clearly does not permit revocation of one illegal sentence in order to impose another illegal sentence. See, e.g., State v. Hegstrom, 401 So.2d 1343 (Fla.1981) (...
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