Smith v. State, 87-97
| Decision Date | 24 December 1987 |
| Docket Number | No. 87-97,87-97 |
| Citation | 518 So.2d 1336,13 Fla. L. Weekly 4 |
| Parties | 13 Fla. L. Weekly 4 Riley Bernard SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, Joseph N. D'Achille, Jr. and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for appellee.
UPCHURCH, F.D., Jr., Judge, Retired.
Smith appeals his resentencing for armed robbery. Smith was charged with and convicted of the November 7, 1985 armed robbery of a restaurant. Originally, a sentencing guideline scoresheet was prepared, indicating a recommended range of three and one-half to four and one-half years imprisonment. The trial judge departed from the recommended sentence and imposed a six year sentence. Smith appealed to this court on March 31, 1986 and by opinion dated October 9, 1986, this court reversed, finding none of the reasons given for departure was valid and "remanded for resentencing within the presumptive guideline range." 495 So.2d 876.
Meanwhile, by informations filed in Lake County in January, February and March 1986, Smith was charged with five other armed robberies which had been committed before the instant robbery. On September 2, 1986, while the appeal to this court was still pending, Smith entered guilty pleas to all five charges and was sentenced to concurrent seven and one-half year terms on each.
Upon remand of the instant matter, the state prepared a new sentencing guideline scoresheet which included the five Lake County convictions as "prior offenses." This resulted in a recommended sentence of life imprisonment.
The interesting question presented is whether a defendant who has successfully appealed a departure sentence of six years can then be resentenced to a life term because additional convictions are factored into the scoresheet which were not previously available.
Smith first argues that upon remand he could not, consistent with double jeopardy principles, be sentenced to life imprisonment after he had successfully challenged on appeal the improper departure sentence. Smith argues that this violates North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and that principles of fairness prohibit an increase in his sentence following a successful appeal.
There does not appear to be any constitutional impediment to sentencing a defendant to a greater sentence upon a determination that his first sentence is invalid, at least where there is no basis for concluding that judicial vindictiveness played a part in the sentence. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976 89 L.Ed.2d 104 (1986). There is no evidence here indicating that the life sentence was imposed upon Smith as a vindictive penalty for having taken his first appeal. Rather, the sentence was the result of new information placed before the trial court and this does not violate a defendant's constitutional rights. See Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984). ("Consideration of a criminal conviction obtained in the interim between an original sentencing and a sentencing after retrial is manifestly legitimate"). 1
There being no constitutional prohibition to a greater sentence, the next question concerns the effect of this court's prior decision reversing the departure sentence and remanding for sentencing within the presumptive guideline range. Our supreme court has recently declared that "[g]enerally, when all of the reasons stated by the trial court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence." Shull v. Dugger, 515 So.2d 748 (Fla.1987). Shull involved an attempt to enunciate new reasons for a departure upon remand following reversal of the departure sentence. We do not read Shull as mandating that Smith be resentenced to somewhere between three and one-half and four and one-half years imprisonment if Smith's scoresheet was properly revised to reflect as "prior record" additional convictions obtained after the first appeal was taken and prior to resentencing (for criminal conduct committed prior to the instant crime) which results in a higher presumptive sentence. 2
In considering the question of "prior record" we begin by noting that Smith was sentenced on remand on November 26, 1986. "Prior Record" since October 1, 1986 for purposes of scoresheet computation refers to:
[A]ny past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense.
The Second District in a series of cases has held that under the above language, a crime committed prior to the offense for which sentencing is to be imposed should be factored into the guidelines so long as the conviction of the prior crime takes place before the sentencing. Cousins v. State, 507 So.2d 651 (Fla. 2d DCA 1987); Falzone v. State, 496 So.2d 894 (Fla. 2d DCA 1986); Frank v. State, 490 So.2d 190 (Fla. 2d DCA 1986). In the first case, Frank, the court stated that given the commas setting off the words "resulting in conviction," the rule means that only the past criminal conduct must occur prior to the commission of the primary offense and the crime should be scored even though conviction does not occur until after the commission of the primary offense. In Falzone, the court again rejected the argument that for the prior crime to be factored into the guidelines the conviction must have occurred before commission of the subject crime. The court could see no reason why the rule would seek to exclude from guideline computation those convictions which occur between the commission of the subject offense and the sentencing for that offense. Falzone, 496 So.2d at 896. The court declared that "[u]se of the...
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Patten v. State, 86-2928
...factored as "prior record" could be used as a proper means to deviate from the recommended sentence. By comparison in Smith v. State, 518 So.2d 1336 (Fla. 5th DCA 1987), which the dissent relies upon by analogy in support of its opinion, the court held that offenses committed before the pri......
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Merriex v. State, BR-417
...142 (Fla. 5th DCA 1986), and Frank v. State, 490 So.2d 190, 192 n. 1 (Fla. 2d DCA 1986). We agree with the analysis in Smith v. State, 518 So.2d 1336 (Fla. 5th DCA 1987), detailing the basis for distinguishing cases where the challenged offense occurred prior to the primary one at sentencin......
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Smith v. State, 87-2944
...resentencing it was incumbent upon the trial court to sentence defendant in accordance with an accurate scoresheet. Cf. Smith v. State, 518 So.2d 1336 (Fla. 5th DCA 1987) (after appellate remand for resentencing within guidelines range, resentencing to a more severe sentence than that withi......
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Duval v. State, 87-1740
...scoresheet. The facts in this case are indistinguishable from the facts in Smith v. State, 536 So.2d 1021 (Fla.1988), reversing 518 So.2d 1336 (Fla. 5th DCA 1987). Accordingly, we reverse the defendant's sentence and remand to the trial court for a sentencing not to exceed twenty-seven year......