NH v. State, 98-3112.
| Decision Date | 23 December 1998 |
| Docket Number | No. 98-3112.,98-3112. |
| Citation | 723 So.2d 889 |
| Court | Florida District Court of Appeals |
| Parties | N.H., A Child, Petitioner, v. STATE of Florida, Respondent. |
James B. Gibson, Public Defender, and James G. Whitehouse, Assistant Public Defender, Daytona Beach, for Petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Turner, Assistant Attorney General, Daytona Beach, for Respondent.
Petitioner seeks discharge from custody pursuant to a petition for a writ of habeas corpus, claiming that the trial court violated her double jeopardy rights. The trial court originally placed petitioner in secure detention for 75 days for contempt of court in five cases, suspending the sentence. When petitioner violated community control, the trial court required her to serve 25 days of the suspended sentence. After petitioner had served the 25 days, and without any intervening misconduct, the trial court ordered petitioner to serve the remaining 50 days of her original suspended sentence, to ensure that she would be detained until she could be placed in a moderate risk facility. Although petitioner has now been placed, she argues that the double jeopardy issue raised by the trial court's action is capable of repetition, yet evading review, and therefore should be addressed. See Holly v. Auld, 450 So.2d 217, 218 (Fla.1984)
. We agree.
The trial court in this case could have required petitioner to serve the entire suspended sentence based on her violation of community control. However, once the court sentenced her to serve 25 days of the original suspended sentence, the court could not increase petitioner's penalty based on the same conduct. This is a clear violation of the double jeopardy clause, which prohibits multiple punishments for the same offense. See, e.g., Lippman v. State, 633 So.2d 1061 (Fla. 1994)
(); Ruffin v. State, 589 So.2d 403 (Fla. 5th DCA 1991) (); Johnson v. State, 574 So.2d 222 (Fla. 5th DCA 1991)(once a defendant has commenced serving a valid sentence, the court cannot constitutionally again sentence the defendant for the same offense or make the original sentence more onerous). Accordingly, we disapprove the trial court's imposition of...
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