Scott v. State

• Decision Date: 15 January 1976
• Docket Number: No. 46777,46777
• Citation: 326 So.2d 165
• Parties: William Arthur SCOTT, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 165

326 So.2d 165

William Arthur SCOTT, Petitioner, v. The STATE of Florida, Respondent.

No. 46777.

Supreme Court of Florida.

Jan. 15, 1976.

Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for respondent.

MUSZYNSKI, Circuit Judge.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Third District, that its decision (Scott v. State, 305 So.2d 289) is one which involves a question of great public interest. See Fla.Const., art. V, § 3(b)(3), F.S.A.

The question certified by the District Court of Appeal is:

'Whether a trial judge who previously sentenced a defendant to a term of years and upon a new trial, after the defendant is put on probation and said probation is revoked, may he then sentence him to a term in excess of the original term of incarceration'?

The District Court of Appeal, by a vote of two to one, answered the certified question in the affirmative. Although this Court is free to decline to entertain this cause, Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961), we prefer to accept jurisdiction and adopt the majority opinion of the District Court of Appeal as the opinion of this Court. Therefore, we hold 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.

In addition to answering the certified question in the affirmative, we affirm the District Court's disposition of the other issue involved in its decision.

It is so ordered.

ADKINS, C.J., and ROBERTS, J., concur.

ENGLAND, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion.

ENGLAND, Justice (concurring specially).

I concur in the Court's decision for the reasons expressed in the majority opinion of the Third District Court of Appeal.

BOYD, Justice (dissenting).

I respectfully dissent to the majority opinion for three reasons:

1. North Carolina v. Pearce ¹ establishes a Federal standard which controls here:

'In order to assure the absence of such a motivation (vindictiveness), we have concluded that Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant Occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.' (emphasis supplied)

In my opinion, this standard is not superseded by Section 948.06, Florida Statutes, which, upon breach of probation, authorizes the trial court to 'impose any sentence which it might have originally imposed before placing the probationer on probation.' Reading this statute in light of Pearce, supra, the maximum sentence which the court may impose in a new trial is the sentence previously given, unless aggravating circumstances not present in the original trial are shown. The crucial question is whether, in finding aggravating conditions not present in the first trial, the court can consider post-trial misconduct, such as violation of probation. As observed by Judge Carroll in his dissenting...