Jones v. State

• Citation: 559 So.2d 204
• Decision Date: 01 March 1990
• Docket Number: No. 74004,74004
• Parties: 15 Fla. L. Weekly S118 Johnnie Lee JONES, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

Page 204

559 So.2d 204

15 Fla. L. Weekly S118

Johnnie Lee JONES, Petitioner, v. STATE of Florida, Respondent.

No. 74004.

Supreme Court of Florida.

March 1, 1990.

Rehearing Denied May 1, 1990.

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Joan Fowler, Asst. Atty. Gen., West Palm Beach, for respondent.

OVERTON, Justice.

We have for review Jones v. State, 540 So.2d 245 (Fla. 4th DCA 1989) [Jones III ], in which the district court affirmed a departure sentence imposed on remand. The underlying issue concerns the authority of the sentencing judge, in a resentencing proceeding, to depart from the recommended guidelines sentence. We accepted jurisdiction because of direct conflict with Harrison v. State, 523 So.2d 726 (Fla. 3d DCA 1988). ^* We approve the legal analysis of the district court in the instant case, but find that the maximum sentence that can be imposed upon the petitioner is twenty-five years.

This case comes to us in a very unusual procedural posture. Jones was convicted in 1985 of third-degree murder, grand theft, and leaving the scene of an accident. The trial court sentenced Jones, solely under the habitual offender statute, to fifty years in prison. On appeal, the district court affirmed the convictions but determined that

a finding that defendant is a habitual offender is not a permissible basis for departing from the sentencing guidelines. Whitehead v. State, 498 So.2d 863 (Fla.1986).

In addition, the trial court failed to attach written reasons for departure.

Jones v. State, 502 So.2d 1375, 1378 (Fla. 4th DCA 1987) [Jones I ]. The district court then remanded the case for resentencing.

At resentencing, the trial court determined that the recommended guidelines range was three to seven years. The trial court then imposed a twenty-five year sentence, giving three reasons for departure. On appeal, the district court held the sentence invalid, ruling that

[b]ecause the sole reason initially given for departure from the guidelines, habitual offender status, was found invalid on appeal, the trial court cannot, upon resentencing, exceed the recommended sentence by ascribing the new reasons for departure. See Shull v. Dugger, 515 So.2d 748 (Fla.1987).

Jones v. State, 526 So.2d 173, 174 (Fla. 4th DCA 1988) [Jones II ].

The mandate for Jones II was issued on July 8, 1988, and a third sentencing was held on August 11, 1988. The trial judge reimposed a fifty-year sentence, based upon Jones' habitual offender status and the prior departure reasons. The trial judge expressly relied upon the Second District Court's decision in Waldron v. State, 529 So.2d 772 (Fla. 2d DCA 1988), released subsequent to Jones II, believing that Waldron allowed him to impose the initial fifty-year sentence. Jones filed a motion to enforce the Jones II mandate on August 12, 1988, one day after the resentencing. In so doing, he was seeking to have the trial judge impose the recommended guidelines sentence. This motion was granted on September 14, 1988. In the meantime, Jones timely filed an appeal from the August 11 resentencing. The state filed a motion for rehearing directed toward the order granting Jones' motion to enforce the mandate and also requested the district court of appeal to vacate the mandate enforcement order. On December 2, 1988, the district court vacated its order enforcing the mandate and consolidated its Jones II decision with the notice of appeal from the third sentence.

In Jones III, the district court reconsidered its Jones II decision and affirmed the third sentence, noting that it previously had not addressed the adequacy of the reasons for departure in its Jones I decision and had relied on our decision in Shull v. Dugger, 515 So.2d 748 (Fla.1987), for its holding requiring a reversal of the sentence in Jones II. The district court reconsidered these decisions and, relying on the Second District Court's interpretation of Shull in its Waldron decision, concluded that the first sentencing of Jones, which resulted in a sentence enhanced by the application of the habitual offender statute, did not constitute a bar to subsequent enhancement of his sentence based upon written reasons supporting an upward departure from the sentencing guidelines' recommended range. Since the district court of appeal had jurisdiction to review the third sentencing, it also had the authority to change the law of the case previously set forth in Jones I and Jones II. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965).

In our recent decision in Roberts v. State, 547 So.2d 129 (Fla.1989), we approved Waldron. In Roberts and in State v. Betancourt, 552 So.2d 1107 (Fla.1989), we distinguished those resentencings where the judge in the original sentencing did not know that he had to set forth reasons for departure from those resentencings where the judge previously had departed from the guidelines and set forth reasons for departure.

In Shull, the judge imposed a sentence in excess of the guidelines...