Poore v. State, 70397

• Court: United States State Supreme Court of Florida
• Citation: 531 So.2d 161,13 Fla. L. Weekly 571
• Docket Number: No. 70397,70397
• Parties: 13 Fla. L. Weekly 571 Lonnie POORE, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 22 September 1988

Page 161

531 So.2d 161 13 Fla. L. Weekly 571 Lonnie POORE, Petitioner,
v.
STATE of Florida, Respondent. No. 70397. Supreme Court of Florida. Sept. 22, 1988.

Page 162

James B. Gibson, Public Defender, and Brynn Newton and Kenneth Witts, Asst. Public Defenders, Seventh Judicial Circuit, Daytona Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondent.

BARKETT, Justice.

We have for review Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987), based on express and direct conflict with Brooks v. State, 478 So.2d 1052 (Fla.1985); Hill v. State, 486 So.2d 1372 (Fla. 1st DCA 1986); Lynch v. State, 491 So.2d 1169 (Fla. 4th DCA 1986); and Crosby v. State, 487 So.2d 416 (Fla. 2d DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We have accepted jurisdiction to clarify the law governing split sentences.

Petitioner was classified a youthful offender and sentenced on September 9, 1982 to four-and-one-half years in the Department of Corrections. However, the trial court directed that petitioner would be confined for two-and-one-half years, with the

Page 163

remainder of the sentence suspended. During the suspended portion, petitioner would be on probation. As noted by the district court below, this constituted a "true split sentence." 503 So.2d at 1284.

In 1985, petitioner pled guilty to a probation violation and elected to be resentenced under the new sentencing guidelines. The trial court obliged and then concluded that the guidelines recommendation was any nonstate prison sanction. ¹ It nevertheless imposed a sentence of incarceration for four-and-one-half years with credit for time served and gave written reasons for departing from the guidelines.

Petitioner appealed to the Fifth District, alleging an improper departure. The Fifth District reversed and vacated the sentence, not because it was an improper departure sentence, but because "it should not have been imposed at all." 503 So.2d at 1283. The district court held that petitioner could only be incarcerated for the remainder of the original split sentence. It reasoned that the defendant already had been sentenced and the trial court thus lacked the authority to impose a second sentence. 503 So.2d at 1285-86.

This rationale again was applied in Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987). There, however, the district court precluded the "resentencing" of a defendant who had violated probation imposed pursuant to a second kind of split sentence, which, for convenience, we will call a "probationary split sentence." That is, the defendant in Wayne was sentenced to a period of incarceration, none of which was suspended, followed by a period of probation.

After the decisions in Poore and Wayne, the Fifth District, sitting en banc, reconsidered this issue in Franklin v. State, 526 So.2d 159 (Fla. 5th DCA 1988) (en banc). The en banc court in Franklin receded from dicta in Poore and Wayne suggesting that section 948.06(1), Florida Statutes (1987), ² violated double jeopardy when applied to violations of probation where either a true split sentence or a probationary split sentence had been imposed. We agree with the court in Franklin that double jeopardy does not forbid the imposition of a longer period of incarceration when a petitioner violates probation in a probationary split sentence, the kind of sentence employed in Wayne.

It is well-settled in federal law that jeopardy has attached when a prisoner begins serving a sentence, such that the original sanction may not be increased based solely on the same facts at issue in the trial. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). However,

[a] trial judge is not constitutionally precluded ... from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.'

Id. at 723, 89 S.Ct. 2079. (quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337 (1949)). In essence, the Supreme Court required that a new fact be produced that was not before the court at the original sentencing. Based upon this principle, the Fifth Circuit has concluded that

[w]hen a greater sentence is imposed upon the revocation of probation, it can be based upon the defendant's subsequent conduct demonstrating his lack of amenability to reform.

Page 164

Williams v. Wainwright, 650 F.2d 58, 61 (5th Cir.1981). We ourselves have held that

a trial judge who previously sentenced a defendant to a term of years less than the maximum allowable by law, may, after a new trial wherein defendant is placed on probation, impose for violation of the terms of probation, any sentence up to the maximum which could have been originally imposed.

Scott v. State, 326 So.2d 165, 166 (Fla.), cert. denied, 429 U.S. 836, 97 S.Ct. 104, 50 L.Ed.2d 103 (1976). Such a resentencing does not violate the prohibition against double jeopardy. Williams,...