Jones v. State, 73--318
| Decision Date | 03 July 1974 |
| Docket Number | No. 73--318,73--318 |
| Citation | 297 So.2d 93 |
| Parties | Walter JONES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, and Robert T. Benton, II, Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard C. Booth, Asst. Atty. Gen., Tampa, for appellee.
Appellant, Walter Jones, was seventeen (17) years of age at the time he is alleged to have committed a criminal offense, to wit: robbery. He pled guilty as charged and was sentenced by the circuit judge of Manatee County, to six (6) months to five (5) years imprisonment, with credit for time served in jail pending sentence. His participation in the crime charged was that of an aider and abettor. It appears from the record that appellant commenced to serve the sentence imposed. Thereafter, on several occasions, the trial judge vacated and/or changed the provisions of the sentence. Finally, the trial judge vacated the sentence and placed appellant on probation for five (5) years with the special condition that he be '. . . remanded to the custody of Sunland Training Center at Fort Myers, Florida, and or Sunland Training Center Officials.'
This change in sanctions imposed by the trial judge appears to have been justified and in the best interest of appellant. The trial judge became apprised of the fact that this young man was classified as retarded; he had been involved in an automobile accident wherein he sustained severe, permanent brain damage.
Within a period of approximately three (3) months, appellant was discharged from Sunland when the officials of that institution determined that he was not a suitable person for that institution. For aught appears the record, appellant, while wandering around the City of Ft. Myers, was arrested on a charge of being a public drunk. He served his sentence of ten (10) days on this charge. He was subsequently returned to Manatee County in the custody of the law enforcement officers of that county for violation of the terms and conditions of probation. The violations charged consisted of his being outside Manatee County and use of intoxicants. He pled guilty a charged; was represented by court-appointed counsel at the hearing, and the trial judge imposed a prison sentence upon appellant of twenty (20) years in the state prison. The sentence is legal 1 and within the discretion of the court to impose. While the trial judge was made aware of appellant's emotional and mental infirmities, he found that appellant '. . . has been unable to adjust on the outside of prison and make any progress with probation, his record being replete with problems to himself and society. . . .'
Appellant then filed a motion for postconviction relief as permissible under the provisions of Rule 3.850, CrPR, alleging double jeopardy. This is the precise and only question for our consideration. Appellant strongly contends that because he had started to serve time in prison under the original sentence of five (5) years, the sentence of twenty (20) years imprisonment imposed by the trial court, upon revocation of probation, is unlawful and illegal in that he is being twice put in jeopardy for the same offense.
This timely appeal is from the order denying his motion, supra.
We are constrained to point out at the outset that appellant was not initially sentenced in compliance with the provisions of Rule 3.710, CrPR, 33 F.S.A. The record fails to disclose that the trial judge requested a presentence investigation report be obtained prior to imposition of sentence. The appellant was under eighteen (18) years of age and was a first felony offender. 2 In the light of the subsequent redirection of sentence to probation, as stated, the failure to follow the rule, supra, is regarded as harmless error. The order revoking probation (not appealed here) did not require a presentence investigation report, notwithstanding that one had not been obtained prior to the initial sentence. 3 We firmly believe that had a presentence report been made available to the trial judge, at the time appellant was sentenced originally, the judicial labor that followed might well have been avoided or greatly reduced. It might well have revealed that what this young man needed was medical care and treatment--not imprisonment.
The trial judge in a criminal...
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Farber v. State, 81-599
...of an imposed sentence or a "resentencing," and neither double jeopardy, see Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Jones v. State, 297 So.2d 93 (Fla. 2d DCA 1974), nor Florida Rule of Criminal Procedure 3.800 is a bar to the While our holding is supported by Williams v. State, supra, in......
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State v. Rodriguez, 75--1336
...in a new term; therefore, it lacked the power to mitigate the sentence. Compare Troupe v. Rowe, Fla.1973, 283 So.2d 857; Jones v. State, Fla.App.1974, 297 So.2d 93. Therefore, the order under review be and the same is hereby quashed, and the matter is returned to the trial court with direct......
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Moore v. State, 88-1225
...of an imposed sentence or a "resentencing," and neither double jeopardy, see Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Jones v. State, 297 So.2d 93 (Fla. 2d DCA 1974), nor Florida Rule of Criminal Procedure 3.800 is a bar to the 409 So.2d at 73. Moore also contends that the trial court erre......
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Mitchell v. State, s. 74--835
...on appeal have been considered and found to be without merit. See Singletary v. State, Fla.App.4th 1974, 290 So.2d 116; Jones v. State, Fla.App.2d 1974, 297 So.2d 93; and Scott v. State, Fla.App.3rd 1974, 305 So.2d For the foregoing reasons, the orders revoking probation and the imposition ......