Goene v. State

• Decision Date: 21 March 1991
• Docket Number: No. 75218,75218
• Citation: 577 So.2d 1306,16 Fla. L. Weekly 216
• Parties: 16 Fla. L. Weekly 216 Edwin GOENE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1306

577 So.2d 1306

16 Fla. L. Weekly 216

Edwin GOENE, Petitioner, v. STATE of Florida, Respondent.

No. 75218.

Supreme Court of Florida.

March 21, 1991.

Rehearing Denied May 8, 1991.

Richard L. Jorandby, Public Defender and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and James J. Carney, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

We have for review Goene v. State, 552 So.2d 337, 338 (Fla. 4th DCA 1989), in which the district court certified the following question as one of great public importance:

Are the holdings in Senior v. State, 502 So.2d 1360 (Fla. 5th DCA), rev. denied, 511 So.2d 299 (Fla.1987); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976); and Doe v. State, 492 So.2d 842 (Fla. 1st DCA 1986), valid, in light of the enactment of the sentencing guidelines, for the reason that a complete and accurate prior criminal record of a defendant is essential to a proper computation of a sentence under said guidelines?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We rephrase the question in light of the facts of this case as follows:

May a trial court resentence to a greater term a defendant who, because he affirmatively misrepresented his identity, was originally sentenced pursuant to an inaccurate scoresheet?

For the reasons expressed in this opinion, we answer the question as rephrased in the affirmative and approve the decision below.

Edwin Goene was adjudicated guilty on March 9, 1988, of armed robbery, false imprisonment, and carrying a concealed weapon. Although Goene asked to be immediately sentenced, the state requested a presentence investigation to confirm that Goene had no prior criminal convictions. At the sentencing hearing on April 5, 1988, the presentence investigation failed to uncover any record of an Edwin Goene in Prattville, Alabama, and the state produced no records to confirm or dispute Goene's identity. The judge asked Goene what his real name was, and Goene responded, "That's my real name, your honor." Despite the lack of records to confirm Goene's identity or establish prior crimes, the state did not move for a continuance or object to the sentencing, and the trial judge sentenced Goene under the guideline to four and one-half years' imprisonment.

Subsequently, the state received an analysis of Goene's fingerprints from the FBI revealing that Goene's real name was Russell Dean Gorham and that he had an extensive criminal history. Had that history been scored, the guideline sentence range would have been twelve to seventeen years. On May 24, 1988, the state filed a motion in the trial court to vacate the sentence, arguing that Goene's misrepresentations had produced an inaccurate scoresheet. By this time, Goene had already commenced serving his sentence. On June 1, 1988, the motion was granted, and the judge resentenced Goene to seventeen years. ¹ The Fourth District Court of Appeal affirmed the conviction and resentence.

Goene argues that resentencing him to a greater term after he had begun serving the original sentence violates the prohibition against double jeopardy under the Florida and federal constitutions. The United States Supreme Court has established that the

guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The underlying purpose of the double jeopardy clause is to avoid subjecting the defendant to repeated embarrassment, expense, anxiety, and insecurity. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). In short, the defendant at some point must be entitled to rely on the finality of the court's action.

The state argues that the resentencing here is permitted under the Supreme Court's decision in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The issue presented in DiFrancesco was whether a federal statute authorizing the state to appeal a sentence violated the double jeopardy clause. In reaching its conclusion that double jeopardy principles were not violated, the United States Supreme Court stated:

[O]ur task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.

....

This Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal.

DiFrancesco, 449 U.S. at 132, 134, 101 S.Ct. at 434, 436. The Court concluded that because the defendant was aware that a dangerous-special-offender sentence was subject to being increased on appeal, the defendant's "legitimate expectations" of finality were not defeated by an increased sentence on appeal "any more than are the expectations of the defendant who is placed on parole or probation that is later revoked." Id. at 137, 101 S.Ct. at 437 (emphasis added).

We find that the analysis set forth in United States v. Jones, 722 F.2d 632 (11th Cir.1983), is the correct interpretation of DiFrancesco and the appropriate application of double jeopardy principles to the situation at bar.

We are able to draw two lessons from that opinion [DiFrancesco ]. First, the Double Jeopardy Clause bars multiple punishment, i.e., punishment in excess of that permitted by law. Id. [101 S.Ct.] at 438. Second, the Double Jeopardy Clause respects the defendant's "legitimate expectations" as to the length of his sentence. Id. at 437.

....

For the purpose of determining the legitimacy of a defendant's expectations, we draw a distinction between one who intentionally deceives the sentencing authority or thwarts the sentencing process and one who is forthright in every respect. Whereas the former will have purposely created any error on the sentencer's part and thus can have no legitimate expectation regarding the sentence thereby procured, the latter, being blameless, may legitimately expect that the sentence, once imposed and commenced, will not later be enhanced.

Jones, 722 F.2d at 637-38 (emphasis in original). See also United States v. Bishop, 774 F.2d 771, 775 (7th Cir.1985) ("A court must be able to sentence a defendant upon accurate information and when the sentence imposed is based upon fraudulent information provided by the defendant, the court has the inherent power to correct that sentence.")

Goene argues that Florida courts have long followed the rule that once a defendant has begun to serve his sentence, the judge may not recall that defendant and resentence him to an increased term. While this may be the general rule in Florida, it is clear that there are exceptions to the rule. In Smith v. Brown, 135 Fla. 830, 185 So. 732 (1938), for example, the defendant was adjudged guilty of the larceny of an automobile and sentenced to serve six months in county jail. During the same term of the court, the sentence was revoked and annulled and the defendant was temporarily discharged. Approximately one year later, the defendant was again brought before the court and sentenced to serve a period of two years in the state prison under the conviction above referred to. The defendant argued on appeal that because he had begun to serve the sentence first imposed upon him, the court was without authority or power to vacate and revoke the sentence and the later-imposed sentence was therefore without force and effect. The Court noted the existence of cited authorities which concluded that a court had no authority to modify a sentence after the defendant had begun serving the sentence. The Court then stated:

The weight of authority appears to support these enunciations but in none of these cases does it appear that the action of the trial court in attempting to set aside and revoke the sentence at the same term of the court was taken on the application of the defendant. The record in the instant case shows that immediately after the defendant was sentenced he developed pneumonia and that his physician represented to the trial court that the defendant "is suffering from pneumonia and that his removal from said county jail is necessary in order to save the defendant's life," and upon this representation the trial court acted.

135 Fla. at 833, 185 So. at 733. The Court concluded that the conditions at bar resulted in the case being controlled by an exception to the general rule:

"But where, at the request of a convicted defendant, or at his instance or approval given during the same term at which a criminal sentence is imposed, the court has vacated or annulled its presently imposed sentence, and deferred the proposition of imposing a new sentence to a subsequent term of court, to which the case is continued ..., the court may, at such subsequent term, impose a new sentence upon the original judgment of conviction, even though such new sentence is greater, or materially different in effect from that first imposed and thereafter vacated."

Id. at 834, 185 So. at 733 ( quoting State ex rel. Rhoden v. Chapman, 127 Fla. 9, 172 So. 56 (1937)). The case at bar is analogous in that the original sentence was affected by some affirmative act on the part of the defendant. The facts at issue warrant a conclusion that this case is also not controlled by the general rule that once a defendant has begun to serve his sentence, the judge may not recall that defendant and resentence him to an increased term.

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