Trotter v. State

• Citation: 825 So.2d 362
• Decision Date: 22 August 2002
• Docket Number: No. SC02-14.,SC02-14.
• Parties: Travis A. TROTTER, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

825 So.2d 362

Travis A. TROTTER, Petitioner, v. STATE of Florida, Respondent.

No. SC02-14.

Supreme Court of Florida.

August 22, 2002.

James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Angela D. McCravy and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

PARIENTE, J.

We have for review the Fifth District Court of Appeal's opinion in Trotter v. State, 801 So.2d 1041, 1043 (Fla. 5th DCA 2001), which certified conflict with the Second District Court of Appeal's opinion in Estrada v. State, 787 So.2d 94, 96 (Fla. 2d DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The conflict issue involves whether, upon remand for resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000),¹ the trial court may exercise its discretion to impose a drug trafficking multiplier when the trial court did not impose the multiplier at the original sentencing.² For the reasons that follow, we conclude that double jeopardy is not violated and that due process principles are not implicated under the circumstances presented in this case. Accordingly, we approve the decision of the Fifth District.

BACKGROUND

Petitioner Travis Trotter was charged with trafficking in 28 grams or more of cocaine. See Trotter, 801 So.2d at 1042

. He entered a guilty plea, and in a written plea agreement, the State recommended a sentence of 83.2 months' incarceration. See id.³ The trial court sentenced Trotter to 83.2 months' incarceration under the 1995 sentencing guidelines. See id. Under the 1995 sentencing guidelines, the 83.2 month sentence fell within the middle of the permitted sentencing range of 76 to 113 months. See Fla. R.Crim. P. Form 3.988(g). However, the trial court declined to enhance Trotter's sentence by applying a 1.5 multiplier to the number of sentence points scored. See Trotter, 801 So.2d at 1042. It is undisputed that the multiplier would have been permissible as a result of the fact that Trotter's conviction was for drug trafficking.

Trotter appealed his sentence, asserting that pursuant to this Court's opinion in Heggs, he was entitled to have his sentence vacated and to be resentenced under the 1994 sentencing guidelines. See Trotter, 801 So.2d at 1042

. The sentencing range without the multiplier under the 1994 sentencing guidelines was between 25.05 and 41.75 months' incarceration. The sentencing range with the 1.5 multiplier was between 48.075 and 80.125 months' incarceration. Therefore, Trotter argued that because his original sentence of 83.2 months fell outside of the 1994 guidelines, he was entitled to resentencing under Heggs. See Trotter, 801 So.2d at 1042. The Fifth District agreed that Trotter was entitled to be resentenced according to the 1994 guidelines, and the court vacated Trotter's sentence and remanded the matter to the trial court for resentencing. See id.

On remand, the trial judge who originally sentenced Trotter conducted the resentencing hearing and determined that a sentence imposed under the 1994 guidelines without applying the multiplier "would be insufficient." Id. at 1043. The trial court stated that "the court finds that the 1.5 multiplier is applicable and was applicable at the time of your commission of this offense for trafficking in cocaine." Id. Consequently, the trial court applied the multiplier and imposed a sentence of 72 months' incarceration. See id.

Trotter again appealed his sentence to the Fifth District, contending that the trial court lacked the authority to enhance his sentence by applying the multiplier because, in originally sentencing Trotter, the trial court exercised its discretion and refused to apply the multiplier. See id. The Fifth District rejected Trotter's argument. See id. The Fifth District first explained that a resentencing under Heggs is a de novo sentencing proceeding. See id. Next, the Fifth District expressly disagreed with the Second District's decision in Estrada, which held that the trial court is not authorized to add a discretionary multiplier to a defendant's scoresheet upon a Heggs resentencing when the trial court declined to impose the multiplier during the defendant's original sentencing. See Trotter, 801 So.2d at 1043

. The Fifth District explained that the Second District in Estrada based its decision in part on the Fifth District's earlier decision in Kingsley v. State, 682 So.2d 641 (Fla. 5th DCA 1996), which held that, "although points which were mistakenly omitted from a scoresheet can be added when sentencing for violation of probation, a determination that only slight victim injury occurred cannot be altered on a violation of probation so as to increase the victim injury points." Trotter, 801 So.2d at 1043. The Fifth District in Trotter explained that Kingsley was not applicable because that case involved a sentencing upon violation of probation, which would raise double jeopardy issues not present at a de novo resentencing hearing pursuant to a Heggs reversal. See Trotter, 801 So.2d at 1043. Therefore, the Fifth District affirmed the trial court's assessment of the multiplier in this case and certified conflict with Estrada. See Trotter, 801 So.2d at 1043.

ANALYSIS

Because the issue of whether the imposition of the multiplier on resentencing after a Heggs remand violates Trotter's double jeopardy and due process rights involves pure questions of law, this claim is subject to de novo review. See Demps v. State, 761 So.2d 302, 306 (Fla.2000)

; cf. United States v. Watkins, 147 F.3d 1294, 1296 (11th Cir.1998) (holding that whether resentencing violated double jeopardy was a pure question of law subject to de novo review). We first address Trotter's double jeopardy claim.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause of the Florida Constitution similarly provides: "No person shall ... be twice put in jeopardy for the same offense." Art. I, § 9, Fla. Const. The scope of the Double Jeopardy Clause is the same in both the federal and Florida Constitutions. See Carawan v. State, 515 So.2d 161, 164 (Fla. 1987),

superseded on other grounds by § 775.021(4), Fla. Stat. (2001); Cohens v. Elwell, 600 So.2d 1224, 1225 (Fla. 1st DCA 1992).

In Harris v. State, 645 So.2d 386, 388 (Fla.1994), this Court held that double jeopardy is not implicated in the context of a resentencing following an appeal of a sentencing issue. In Harris, the defendant was convicted of robbery while armed with a firearm and resisting an officer without violence. Id. at 387. The State requested habitual offender sanctions, but the defendant convinced the trial court that such sanctions were not legally permissible for his convictions. See id. The defendant was sentenced to 27 years and was not sentenced as a habitual offender. See id. The defendant appealed both his convictions and sentences to the district court, and the State cross-appealed the issue of whether the trial court had the legal authority to impose habitual offender sanctions. See id. The district court affirmed the convictions, but concluded that the trial court erred in finding that the defendant's convictions were not subject to habitualization. See id. Therefore, the district court remanded for resentencing under the habitual offender statute. See id. On remand, the trial court sentenced the defendant as a habitual offender to a term of 27 years. See id. Although the new sentence was the same number of years as the original sentence, the defendant was subjected to a longer period of incarceration under the habitual offender sentence than he otherwise would have served. See id.⁴

This Court rejected the defendant's contention that the imposition of a habitual offender sentence on remand violated double jeopardy, concluding:

Like the United States Supreme Court, we find that the Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. Harris has not been deprived of any reasonable expectation of finality in his original sentence, nor has he been subject to repeated attempts to convict. We note that the State's cross-appeal in this case involved only a legal issue and not the trial court's discretionary judgment concerning Harris's sentence. The trial court's decision against habitual offender sanctions was not based on the State's failure to carry its burden of persuasion. It was a choice based on the law at the time of the trial judge's decision concerning the circumstances under which a defendant could be habitualized. "[T]he trial court would have originally sentenced Harris as a habitual offender but for the uncertainty in the then state of the law...." Harris, 624 So.2d at 280. The law was clarified by this Court after the initial sentencing and while Harris's case was pending on appellate review. It is now clear that Harris can properly be treated as a habitual offender. We find that Harris had no expectation of finality regarding his sentence where he opened the door to the district court's appellate jurisdiction on an issue of law that was clarified while his case was still pending.

Id. at 388 (emphasis supplied). See also Goene v. State, 577 So.2d 1306, 1309 (Fla. 1991)

(holding that double jeopardy did not preclude defendant who was originally sentenced pursuant to inaccurate scoresheet due to his affirmative misrepresentations from being resentenced to a greater term on remand); Cheshire v. State, 568 So.2d 908, 912 (Fla.1990) (holding that double jeopardy did not preclude trial court from imposing a guidelines sentence on remand where trial court erroneously...