Thomas v. State
| Decision Date | 10 December 1999 |
| Docket Number | No. 99-2834.,99-2834. |
| Citation | 745 So.2d 1119 |
| Parties | Donald L. THOMAS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Donald L. Thomas, Madison, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Respondent.
Petitioner, Donald L. Thomas, alleges ineffective assistance of appellate counsel for not raising a double jeopardy issue on appeal. See Fla. R.App. P. 9.140(j). Thomas was convicted of two counts of a lewd and lascivious act in the presence of a child. At sentencing on June 8, 1998, the prosecutor presented evidence that Thomas qualified as both a violent career criminal and as a prison releasee reoffender. See generally, §§ 775.084(1)(d) and 775.082(9), Fla. Stat. (1999). When asked to respond, defense counsel indicated that the prosecutor had to elect an enhancement, and further argued that the Prison Releasee Reoffender Act was unconstitutional.
The trial court declared that Thomas was a violent career criminal and sentenced him to thirty years incarceration on each count, to run concurrently. The trial court also found Thomas to be a prison releasee reoffender and orally pronounced a fifteen year term of imprisonment on each count, to run concurrently with his violent career criminal sentences. After sentence was imposed, defense counsel raised an objection as to the "double sentencing." The trial judge overruled the objection, stating that he did not think that double jeopardy would prohibit the sentencing scheme, and added that the appellate court would review it and might make some decision on it.
On direct appeal, appellate counsel filed an Anders brief, and the double jeopardy issue was not raised. Although the initial brief stated that the court found Thomas to be a prison releasee reoffender, the brief did not mention that the court imposed fifteen year sentences in addition to the thirty year sentences.
It is fundamental that a person cannot be sentenced twice for the same offense, yet in this case that is precisely what happened when the judge imposed two sentences for each conviction. This was a violation of the constitutional prohibition against double jeopardy.1See Adams v. State, 24 Fla. L. Weekly D2394, ___ So.2d ___ (Fla. 4th DCA Oct. 20, 1999). A double jeopardy violation constitutes fundamental error,2 and appellate counsel was ineffective for failing to raise this issue on appeal.
The petition alleging ineffective assistance of appellate counsel is granted. As the record before us shows that Thomas was...
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Grant v. State
...prison releasee reoffender and the habitual felony offender] statutes constitutes double jeopardy and is illegal") and Thomas v. State, 745 So.2d 1119 (Fla. 5th DCA 1999) (holding that such concurrent sentences violate double jeopardy).1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Con......
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Chambers v. State, 1D99-1928.
...maximum permitted by statute for a third degree felony. See also Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999). Cf. Thomas v. State, 745 So.2d 1119 (Fla. 5th DCA 1999)(court vacated 15-year prison releasee reoffender sentences imposed to run concurrently with 30-year violent career crimi......
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Ward v. State
...reoffender sentence for the same crime violates double jeopardy. Lewis v. State, 751 So.2d 106 (Fla. 5th DCA 1999); Thomas v. State, 745 So.2d 1119 (Fla. 5th DCA 1999). The fourth district agrees. See McFadden v. State, 2000 WL 121793, ___ So.2d ___ (Fla. 4th DCA Feb.2, 2000); Adams v. Stat......
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Dragani v. State, 5D99-1203.
...1999); Melton v. State, 746 So.2d 1188 (Fla. 4th DCA 1999); Glave. v. State, 745 So.2d 1065 (Fla. 4th DCA 1999). In Thomas v. State, 745 So.2d 1119 (Fla. 5th DCA 1999), we held that concurrent sentences as a violent career criminal and a PRR for two counts of lewd and lascivious act in the ......