Fasenmyer v. State

• Decision Date: 13 September 1984
• Docket Number: No. 63382,63382
• Citation: 457 So.2d 1361
• Parties: Thomas Raphael FASENMYER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1361

457 So.2d 1361

Thomas Raphael FASENMYER, Petitioner, v.STATE of Florida, Respondent.

No. 63382.

Supreme Court of Florida.

Sept. 13, 1984.

Rehearing Denied Nov. 21, 1984.

Quentin T. Till, Jacksonville, for petitioner.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.

BOYD, Chief Justice.

This cause is before the Court on petition for review of a decision of the District Court of Appeal, First District.The district court held that on remand after a successful appeal challenging only one of three criminal convictions, where the appellate relief clearly attached to only one of the three convictions, the trial court could resentence the offender not only on the offense affected by the appellate court's ruling but also on the other offenses, including an offense the previously imposed sentence for which had been completely satisfied at the time of resentencing.Fasenmyer v. State, 425 So.2d 151(Fla. 1st DCA1983).Finding the jurisdictional ground of express and direct conflict with Troupe v. Rowe, 283 So.2d 857(Fla.1973)andHerring v. State, 411 So.2d 966(Fla. 3d DCA1982), we accept the case for review.Art. V, § 3(b)(3),Fla.Const.The issue is whether, when an appellate court reduces the severity of a criminal conviction because of lack of evidence and orders resentencing accordingly, the trial court may change the sentences previously imposed on other convictions not affected by the appellate court judgment.Under the facts of this case as set out below, we hold that it may not.

In 1973, petitioner was convicted of three crimes and was sentenced for them as follows: (1) count one, breaking and entering with intent to commit a felony, while armed with a dangerous weapon, one hundred years; (2) count two, grand larceny, five years, consecutive to the sentence on count one; (3) count three, use of a firearm during the commission of a felony, fifteen years, consecutive to the sentences on counts one and two.On appeal, the judgment was affirmed without opinion.Fasenmyer v. State, 305 So.2d 99(Fla. 1st DCA1974), cert. denied, 315 So.2d 188(Fla.1975).However, petitioner sought habeas corpus relief in federal district court and received a new trial.He was again convicted on all three counts, but on appeal the convictions were reversed for a new trial due to procedural error by the trial court which was held to have been damaging to the fairness of the trial.Fasenmyer v. State, 383 So.2d 706(Fla. 1st DCA), review denied, 389 So.2d 1109(Fla.1980).

Upon being tried a third time petitioner was again convicted of the same three offenses and was sentenced as follows: (1) on count one, breaking and entering while armed, fifty years with credit for seven years served; (2) on count two, grand larceny, five years, to be served concurrently with the sentence on count one; (3) on count three, use of a firearm while committing a felony, no sentence was imposed, on the ground that the offense in count three "merged" with the offense in count one.Petitioner again appealed his convictions, and this time the appellate court held that there was insufficient evidence to convict him of breaking and entering.The court held that the highest offense petitioner could be convicted of on count one was entering without breaking.The court remanded for entry of judgment of conviction for that offense and for appropriate resentencing.The court specifically observed, "No error affects appellant's other convictions."Fasenmyer v. State, 413 So.2d 33, 33(Fla. 1st DCA1981), review denied, 413 So.2d 877(Fla.1982).

On resentencing, the trial court was faced with an unusual situation.When imposing sentence previously the court had determined that count one, breaking and entering enhanced by the carrying of a firearm, and count three, based on the use or display of a firearm during the burglary, had "merged," and accordingly, had imposed no sentence on count three.¹After remand from the district court of appeal, ordering reduction of the offense in count one to entering without breaking, it was determined that counts one and three had "unmerged" because there was no statutory provision for enhancement of the crime of entering without breaking by proof of the carrying of a firearm.²If the sentence on count one was to be reduced to the statutory maximum punishment of five years and the sentence on count three (no sentence) was left undisturbed, then petitioner would escape punishment entirely for having used a firearm in the commission of the crime.

At the resentencing hearing, petitioner's counsel sought to alleviate this problem for the court by offering a stipulation or testimony that petitioner was carrying a loaded gun at the time of the unlawful entry he was convicted of on count one.Counsel's purpose was to allow the court to sentence petitioner for entering without breaking as a second-degree felony, carrying a possible penalty of fifteen years, rather than as a third-degree felony carrying a maximum penalty of five years.Use of the applicable enhanced penalty provision required proof of possession of "nitroglycerine, dynamite, gunpowder, or other high explosive."See§ 810.03,Fla.Stat.(1973)(referring to § 810.01,Fla.Stat.(1973)).³However, the court would not accept petitioner's argument that the powder in the bullets of his gun came within this statutory provision, and found that the most petitioner could be sentenced to on count one was five years.

Petitioner's objective in making this stipulation and argument was to avoid having the trial judge resentence him under count three.He argued that resentencing under count three would violate the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969).Pearce held that although there is no constitutional bar to imposing a more severe sentence on retrial after appeal, the Due Process Clause of the Fourteenth Amendment requires that vindictiveness against the defendant for having taken a successful appeal "must play no part in" resentencing.Valid reasons for a harsher sentence than that previously imposed must affirmatively appear in the record and be based on "objective information concerning identifiable conduct."Id. at 725-26, 89 S.Ct. at 2080-81.

The trial court resentenced appellant as follows: (1) for count one, entering without breaking with intent to commit a felony, five years; (2) for count two, grand larceny, five years, consecutive to count one; (3) for count three, use of a firearm in the commission of a felony, fifteen years, consecutive to counts one and two.Petitioner was given credit for nearly nine years of time served.

On appeal petitioner challenged the resentencing on counts two and three.The district court affirmed and held that the trial court could change the sentences on offenses which were not challenged or disturbed on appeal as to either conviction or sentence.Relying on United States v. Busic, 639 F.2d 940(3d Cir.1981), the district court reasoned that such a rule would allow the sentencing court to achieve its original sentencing plan based on the aggregate of the convictions.Fasenmyer v. State, 425 So.2d 151, 152(Fla. 1st DCA1983).

Petitioner argues that the district court was wrong to affirm the trial court's changing of the five-year sentence on count two from concurrent to consecutive.After his third trial petitioner was sentenced to five years for the offense of grand larceny, to be served concurrently with count one.By that time petitioner had already served seven years on count one and therefore he had fully satisfied the concurrent sentence on count two.By changing the sentence from concurrent to consecutive in 1982, and not pursuant to any challenge by appellant to the previous sentence or the underlying conviction, the court nullified the service of those five years and violated the Double Jeopardy Clauses of the United States and Florida constitutions.

In Troupe v. Rowe, 283 So.2d 857(Fla.1973), this Court held that once a defendant has been sentenced, double jeopardy attaches and a court may not thereafter on its own motion increase the severity of the sentence.Such prohibition, clearly, should apply even more strongly when the offender has fully satisfied the sentence.It was so held in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872(1873), where the defendant was sentenced to both a fine and imprisonment where the statute provided for either a fine or imprisonment.The Court held that when the offender had paid the fine, the sentence was fully satisfied and the court could not thereafter resentence him.Of course, the rule that a sentence cannot be changed after service has begun does not apply where the defendant successfully challenges his sentence or the conviction upon which it is based.

If petitioner had successfully appealed or collaterally attacked his conviction on count two, on remand the court would have been free to change the sentence from concurrent to consecutive so long as it stayed within the confines of North Carolina v. Pearce.SeeHerring v. State, 411 So.2d 966(Fla. 3d DCA1982);Brown v. State, 264 So.2d 28(Fla. 1st DCA1972).But we hold that where a conviction is not challenged and not disturbed by the appellate court, and has been fully satisfied by its terms by the time the trial court receives the case on remand, a sentence originally ordered to be served concurrently cannot be changed to consecutive service.

We also find merit in petitioner's argument as it pertains to his new sentence on count three.After petitioner's original conviction, he was sentenced to fifteen years on count three, to be served consecutively to counts one and two.On his second conviction after retrial, the court gave petitioner no sentence on count three because it was deemed to have "merged" with count one.However, after the appellate court reduced count one to entering without breaking, an...