Key v. State

• Decision Date: 23 June 1994
• Docket Number: No. 93-80,93-80
• Citation: 638 So.2d 1040
• Parties: 19 Fla. L. Weekly D1362 Billy Thomas KEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1040

638 So.2d 1040

19 Fla. L. Weekly D1362

Billy Thomas KEY, Appellant, v. STATE of Florida, Appellee.

No. 93-80.

District Court of Appeal of Florida First District.

June 23, 1994.

Rehearing Denied July 20, 1994.

Nancy A. Daniels, Public Defender, Glen P. Gifford, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., for appellee.

KAHN, Judge.

Billy Key seeks review of a "Resentencing Order" rendered by the circuit court on December 22, 1992. By its terms, that order "reaffirms or reimposes" four habitual offender sentences Mr. Key originally received from the same circuit court in 1990. He argues on appeal that the resentencing order subjects him to double jeopardy in violation of the state and federal constitutions. We affirm the habitual offender sentences.

In the first appearance of this case before this court, we reversed the habitual offender sentences because under Barnes v. State, 576 So.2d 758 (Fla. 1st DCA 1991), "enhanced sentencing under the habitual felony offender statute requires that the prior convictions be sequential." Key v. State, 589 So.2d 348, 350 (Fla. 1st DCA 1991) (Key I ).

The state sought discretionary review in the supreme court, but was unable to convince the supreme court to recall this court's mandate. Accordingly, on remand from this court, and while the state's petition for discretionary review remained pending in the supreme court, the circuit judge resentenced Mr. Key to guidelines sentences in January of 1992. Shortly thereafter, in February of 1992, the supreme court rejected our Barnes holding, requiring sequential convictions. State v. Barnes, 595 So.2d 22 (Fla.1992). Since our Barnes decision constituted the only authority for reversing Key's habitual offender sentences, the supreme court quashed our decision and remanded for reconsideration in light of Barnes. State v. Key, 603 So.2d 494 (Fla.1992) (Key II ). Of course, Key continued to serve his guidelines sentences (concurrent ten-year sentences) during the pendency of his case before the supreme court. The supreme court denied rehearing in the case on September 16, 1992. On September 22, 1992, this court issued its opinion on remand from the supreme court, stating only, "[W]e affirm the trial court on all issues." Key v. State, 605 So.2d 552 (Fla. 1st DCA 1992) (Key III ). Key moved for rehearing of our decision, and the mandate was issued on November 12, 1992, after denial of the motion for rehearing. The effective date of our Key III decision was September 22, 1992, the date appearing on the face of the decision, not the date upon which we denied rehearing or issued our mandate. Padovano, Florida Appellate Practice, Sec. 14.7, n. 2 ("Unlike an order of the lower tribunal which becomes effective on 'rendition' under Fla.R.App.P. 9.020(g), the effective date of an appellate decision is the date appearing on the face of the decision"). A sentencing hearing took place on November 17, 1992, and the circuit court entered the resentencing order on December 22, 1992.

Key now argues that the state violated his double jeopardy protection by resentencing him on November 17, after he had completed his guidelines sentences ^* on September 24, 1992. Key cites Palmer v. State, 182 So.2d 625 (Fla. 4th DCA 1966), for the proposition that once an offender completes a lawful sentence for a crime, he may not thereafter receive a more severe sentence for the same crime.

In response to Key's double jeopardy argument, the state relies upon United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). In DiFrancesco, the United States Supreme Court held that while double jeopardy considerations bar reprosecution after an acquittal, the same considerations do not prohibit prosecuting authorities from seeking review of a sentence. Recognizing that the practical effect of our Key I decision was to require Key to be resentenced to nonhabitual offender sentences, the state urges that under DiFrancesco it had a perfect right to seek review of this court's order in the supreme court. Once the supreme court quashed our decision, and remanded the case to us, it was inevitable that Key would serve only his original habitual offender sentences.

We agree that the intervening guidelines sentences imposed by the circuit court, after the Florida Supreme Court refused to recall our mandate, did not trigger a double jeopardy violation. The pronouncement of the guidelines sentences did not carry "the finality that attaches to an acquittal." Van Buren v. State, 500 So.2d 732, 734 (Fla. 2d DCA 1987). At the time the guideline sentences were imposed, Key knew that the state was seeking discretionary review with the supreme court on the reversal of his original habitual offender sentences. Double jeopardy arises only when efforts are undertaken to increase a sentence which was legal when originally imposed. Id. In this case the original habitual offender sentences were legal when imposed and have not been increased. The efforts of the state have only been directed toward a reinstatement of the original sentence. Key and his counsel are obviously frustrated by the chronological sequence in which these events have unfolded. Analysis reveals, however, Key never "completed" service of the guidelines...