Johnson v. State, 89-2264

• Decision Date: 24 January 1991
• Docket Number: No. 89-2264,89-2264
• Parties: 16 Fla. L. Weekly 257 Steve Loring JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 222

574 So.2d 222

16 Fla. L. Weekly 257

Steve Loring JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 89-2264.

District Court of Appeal of Florida,

Fifth District.

Jan. 24, 1991.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

The defendant, a youthful offender, was convicted of two offenses and sentenced to 30 months incarceration as to each offense. The defendant was screened and placed in the basic training program provided for in section 958.04(4), Florida Statutes.

Upon the satisfactory completion of that program the trial court issued an order modifying the sentence imposed and placing the defendant on probation as provided for in section 958.04(4)(e). The defendant violated the conditions of his probation and the court revoked probation and imposed a new, second sentence of 3 1/2 years (42 months) incarceration as to each offense. The defendant appeals raising a question as to credit under his new sentence for time served under his first sentence. The State concedes that the defendant did not receive all credit to which he was entitled on his new sentence. State v. Green, 547 So.2d 925 (Fla.1989).

However, there is another, more fundamental, legal infirmity with the two second sentences. ¹ As to the two offenses involved, the defendant was not originally given split sentences as permitted by section 958.04(2)(c), Florida Statutes. He was given straight sentences of incarceration as to both offenses. The supreme court has agreed in Poore v. State, 531 So.2d 161 (Fla.1988), that a defendant cannot be constitutionally resentenced after a violation of probation in a true split sentence; he can only be recommitted to confinement to serve the balance of the sentence that has already been validly imposed. If a second sentence cannot be constitutionally imposed after violation of the probation portion of a true split sentence, then more clearly a second sentence cannot be imposed after the defendant has once been sentenced to straight confinement.

In Poore, supra, Franklin v. State, 545 So.2d 851 (Fla.1989), and State v. Wayne, 531 So.2d 160 (Fla.1988), the supreme court did recognize as valid a sentence of a specific term of confinement followed by a specific term of probation, calling it a "probationary split-sentence" as distinguished from a true split sentence, and held that a second sentence could constitutionally be imposed on a defendant after he violated the probationary portion of such a "probationary split sentence". ²

Section 958.04(4)(e), Florida Statutes, provides that when a youthful offender has successfully completed a basic training program, the trial court is required to "modify" the sentence and place the offender on probation and that if the offender violates that probation the trial court "may revoke probation and impose any sentence it might have originally imposed." ³ The double jeopardy clause of the federal constitution applies to the imposition of sentence as well as the determination of guilt and prohibits the imposition of a second or subsequent sentence after imposition of a valid sentence as to "the same offense." Once a defendant has commenced the service of a valid sentence the court cannot, constitutionally, again sentence him for "the same offense", or make the original sentence more onerous. ⁴ The legislature cannot authorize a violation of this fundamental constitutional right and section 958.04(4)(e) cannot constitutionally authorize, even after violation of probation, a second sentence imposing punishment more onerous or severe than that which has been imposed by a prior valid sentence on the same conviction of what is factually, legally and constitutionally "the same offense." The imposition of a second sentence of 42 months for the same offense for which the defendant was originally sentenced to 30 months in this case violates the defendant's constitutional double jeopardy rights.

Under section 958.04(4)(e), Florida Statutes, the imposition of a true split sentence would avoid any double jeopardy problem because only one sentence is imposed although a portion of that sentence may be temporarily suspended during a probationary period and re-imposed upon violation of the conditions of the suspension (being the conditions of the probation) but in that event, or in the event, as in this case, a straight sentence of incarceration is "modified" pursuant to the statute to place the youthful offender on probation and that probation is violated, the defendant is not actually resentenced; the imposition, execution or actual service, of the original sentence is merely suspended during the probationary period and upon violation of the probation the defendant is merely recommitted to continue to serve the remainder, if any, of the original sentence.

The circumstances of this case should not be confused with those involved in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), because section 958.04(4)(e) purports to authorize, indeed, to mandate, the trial court to "modify" a valid sentence, and there is no "resentencing" resulting from a defendant's appeal seeking reversal of a prior conviction or sentence as in North Carolina v. Pearce. Actually North Carolina v. Pearce is a "due process" case and not a double jeopardy case and relates solely to a resentencing after a defendant has successfully sought a reversal of a prior invalid conviction or sentence, and has no application where there has been no reversal resulting from a defendant's appeal. North Carolina v. Pearce recognized, as had always been good law, that when a defendant has...