Herring v. State, 81-162

• Decision Date: 30 March 1982
• Docket Number: No. 81-162,81-162
• Citation: 411 So.2d 966
• Parties: Howard HERRING, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 966

411 So.2d 966

Howard HERRING, Appellant, v. The STATE of Florida, Appellee.

No. 81-162.

District Court of Appeal of Florida, Third District.

March 30, 1982.

Solomon & Mendelow and Harold Mendelow, Miami Springs, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Despite the defendant's contention that he committed a single crime susceptible to a single conviction and sentence, the record reflects each of the fifteen counts of grand theft, second degree, constituted a separate offense. We do find, however, that each of the concurrent sentences imposed exceeded the five-year maximum allowable by law. §§ 812.014(2)(b), 775.082(3) (d), Fla.Stat. (1979). Accordingly, we vacate the sentences and remand for resentencing. Because it appears to have been its intent that the defendant receive a ten-year sentence, the trial court may, if it chooses, accomplish that sentencing goal by imposing consecutive sentences. ¹

We acknowledge that our authorization of this change from concurrent to consecutive sentences directly conflicts with the decision of our sister court in Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). We believe, however, that Pahud was wrongly decided ab initio and, moreover, has been overruled, sub silentio, by Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).

I.

In Pahud, the defendant was sentenced to two concurrent twenty-year terms of imprisonment. He moved to vacate both sentences as being in excess of the statutory maximum of ten years. ² The trial court vacated the sentences and resentenced Pahud to two ten-year terms to run consecutively. Pahud appealed. The appellate court, acknowledging that it "would be inclined not to view this as an enhanced sentence for we see little if any difference in the result," felt bound by existing case law to reverse. Our review of the cases relied on in Pahud points us in an opposite direction.

A.

The court's reliance in Pahud on Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972), and United States v. Sacco, 367 F.2d 368 (2d Cir. 1966), is misplaced. Those cases held that a trial court is not free to change a valid and unchallenged sentence.

In Brown v. State, supra, the defendant was sentenced on March 16, 1971, to five years imprisonment for possession of narcotics and five years for sale of narcotics, the sentences to run consecutively. On the following day, the trial court, sua sponte, resentenced the defendant to ten years on the sale count to run consecutively to the possession count. Brown then moved to vacate the five-year sentence for possession and the ten-year sentence for sale. ³ But unlike Pahud and unlike Herring in the case before us, Brown never sought to have vacated the five-year sentence for sale imposed on March 16. Significantly, the appellate court stated:

"The (State's) reasoning (that the new sentence may be greater or may differ materially in effect from the previous sentence) would be correct if the entire March 16th sentence were invalid. Such, however, is not the situation here. Only the separate sentence for possession was illegal. The five year sentence for sale was not invalid by itself. Where two separate judgments or sentences are imposed together the legality of each must be determined separately." Brown v. State, supra, at 29. (emphasis supplied).

To the same effect is United States v. Sacco, supra. There, the court imposed a valid five-year sentence on Count I and an invalid seven-year sentence on Count II to run concurrently. The defendant attacked the sentence on Count II only as being in excess of the five-year maximum. The trial court then transposed the sentences, imposing the seven-year sentence on Count I and the five-year sentence on Count II. The appellate court merely held that the valid and unchallenged sentence on Count I could not be increased. ⁴

B.

A second line of cases relied on in Pahud is represented by Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964), and Duggins v. United States, 240 F.2d 479 (6th Cir. 1957), which, while arguably supporting Pahud, are, in our view, wrongly decided. In both, the defendant, sentenced on multiple counts, moved to vacate ten-year sentences imposed in excess of a five-year statutory maximum on certain of the counts. The trial courts reduced the challenged sentences to five years, but ordered that they run consecutively (not, as in the initial sentences, concurrently) with other valid and unchallenged five-year sentences. The appellate courts reversed, reasoning that although the only changed sentences were those which were attacked by the defendant, the defendant had a vested interest in so much of the original sentence that was valid-its concurrency with other unchallenged sentences-which was not subject to change. ⁵, ⁶ This concept, that the concurrency aspect of a vacated sentence is forever sacrosanct and immune from change, is, in our view, erroneous. The cases which hold that an unattacked legal sentence cannot be disturbed when an illegal sentence is set aside and a new sentence imposed arise in a setting where a sentence on one count is legal and the sentence on another, illegal. In that context, the legal sentence is considered untouchable because it is self-contained. The error of Kennedy-Duggins, carried on in Pahud, is to pervert the "part legal-part illegal" rule by applying it to a single sentence on a single count and to declare that there is some vestigial legal part to an illegal sentence which must remain undisturbed when the illegal sentence is set aside. This "once concurrent-always concurrent" declaration simply flies in the face of the long-standing proposition that when, at the defendant's behest, a sentence is invalidated, the slate is wiped clean, and upon resentencing, any sentence which originally could have been imposed may be imposed. ⁷ Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711 (1900) ⁸ (holding constitutional state statute which provided, in pertinent part, "(W)hen a final judgment in a criminal case is reversed by the supreme judicial court on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had."); Robinson v. Warden, Maryland House of Corrections, 455 F.2d 1172 (4th Cir. 1972) (slate wiped clean when prisoner seeks reduced sentence under state statute providing for review by three-judge panel); Kitt v. United States, 138 F.2d 842 (4th Cir. 1943) (when appellate court remanded for resentencing, the trial court was not restricted by the terms of the prior sentences, but instead could impose such sentences as were within the law as if no prior sentence has been imposed) ⁹; State ex rel. Rhoden v. Chapman, 127 Fla. 9, 10, 172 So. 56 (1937) ("where, at the request of a convicted defendant, or at his instance ... the court has vacated or annulled its presently imposed sentence ... the court may ... 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.").

II.

Whatever vitality there may once have been in the Kennedy-Duggins-Pahud line, it is certainly now apparent that it should no longer sire successors. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that a more severe sentence upon reconviction offends neither the double jeopardy nor equal protection clauses of the Constitution. ¹⁰ The only constitutional basis for attack on a second sentence after the first has been set aside is found in the due process clause of the Constitution which is offended only if the enhancement punishes the defendant for the exercise of rights guaranteed him. Specifically rejected in Pearce is the notion that for double jeopardy purposes, the imposition of a sentence is an "implied acquittal" of any greater sentence. See United States v. DiFrancesco, 449 U.S. 117, 135 n. 14, 101 S.Ct. 426, 436 n. 14, 66 L.Ed.2d 328, 345 n. 14 (1980). The rejection of the notion that there is some vested right in the length of a sentence necessarily includes the rejection of the notion that there is a vested right in any other part of a sentence. It is now quite simply the case that a criminal sentence, once pronounced, is not accorded the constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal. United States v. DiFrancesco, supra.

Consistent with the Pearce-DiFrancesco view of the limited reach of the double jeopardy clause is Villery v. Florida Parole & Probation Commission, supra. There the court held that incarceration pursuant to a split sentence or as a condition of probation which exceeds one year is invalid. Surely, were the theory of Kennedy-Duggins-Pahud correct, then a defendant seeking to set aside a sentence imposed in violation of Villery would have a vested interest in the legal part of the sentence, that is, the incarceration of less than one year and the probationary term, and therefore, the trial court, in correcting the sentence, could not disturb those parts. But Villery places no such restriction on the trial court:

"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 ...." 396 So.2d at 1112.

The sentence of imprisonment which may be imposed under Villery may equal the original total term of probation, ¹¹ giving credit for time already served in prison. Thus has Villery, mercifully, dealt the death blow to Pahud.

III.

Therefore, since a defendant who successfully seeks to set aside his sentence has no residual rights in the original sentence, the only remaining possible...