Troupe v. Rowe
| Decision Date | 05 July 1973 |
| Docket Number | No. 42173,42173 |
| Parties | Flazell TROUPE, Petitioner, v. The Honorable Ellen Morphonios ROWE and the Honorable Paul Baker, as Judges of the Criminal Court of Record, in and for Dade County, Florida, Respondents. |
| Court | Florida Supreme Court |
Phillip A. Hubbart, Public Defender, and Thomas J. Morgan, Asst. Public Defender, for petitioner.
Robert L. Shevin, Atty. Gen., and Barry Scott Richard and William L. Rogers, Asst. Attys. Gen., for respondents.
This cause is before us on petition for writ of certiorari to the Third District Court of Appeal to review its opinion reported at 258 So.2d 528 (1972). Conflict is alleged with Beckom v. State, 227 So.2d 232 (Fla.App.2d 1969).
On December 28, 1971, petitioner appeared before Judge Ellen Morphonios Rowe in the (then) Criminal Court of Record, Dade County, and entered pleas of guilty to two informations charging petitioner with breaking and entering and grand larceny. There had been 'plea bargaining' between defendant's attorney and the State Attorney's office. 1 They were agreed upon a sentence of 30 days in the county jail (partially served) followed by two years' probation; their differences were (1) the defendant's desire for a 'finding' of guilt rather than the stigmatizing adjudication, and (2) the resulting benefit of allowing defendant to remain in the army after his release; whereas the state was insistent upon an adjudication of such serious crimes.
The able trial judge weighed these factors, rejected the state's insistence on adjudication and expressly chose to 'go with' the defendant's position of a finding only, in order to return him to military duty. As the judge put it, 'I would rather see him in the streets of Vietnam than on our streets.' She thereupon sentenced the defendant accordingly on the two counts and the entire matter was concluded with the usual inquiry that defendant fully understood his rights in the matter for purposes of the record, with the final firm admonition from the court directed to the defendant in the following terms:
'If you violate probation, if you blow your military career, if you get in any trouble, if you come back before me, you are flat going to prison and for a long time, you know that?
'THE DEFENDANT: Yes, ma'am.'
The court further expressly made it clear in stating with regard to her decision that: 'I'm entering a finding over their objection.'
The record then shows:
'Thereupon, a recess was taken, during which time other court proceedings were had, following which the hearing resumed.'
The record proceeds with a second assistant state attorney appearing before the court:
'Your Honor, we need to return a moment to Flazell Troupe.
'THE COURT: Now what?'
The new assistant state attorney reiterated the State's vehement objection to a 'finding' rather than an adjudication as it had already insisted. Then ensued a lengthy rehash of the earlier proceedings regarding the adjudication which the court had rejected. Ultimately, the court, exasperated, commented: There followed more lengthy discussion and the restatement of the court's view that she still felt the same way as before.
The court also made it perfectly clear in this reiteration of the matter that the court had made its own independent ruling when Mr. Dubitski (the second assistant) referred again to the State's insistence on an adjudication of guilt and the court, referring to the earlier hearing, replied:
There can be no doubt but what the court had made an express ruling and had sentenced the defendant. What later ensued was more in the nature of a 'rehearing' rather than a 'resumption' of a continued hearing. A final, conclusive judgment and sentence had been pronounced before such 'resumption.' In this posture, a defendant cannot be recalled because of a different assistant state attorney wishing further to pursue his insistence upon an adjudication being made and thereupon to reopen the case without so much as a formal motion to vacate the sentence, although in the oral colloquy before the bench and at the court's 'invitation' there was finally a response by the new assistant state attorney that, 'The State certainly moves to that effect, Judge.' This is the basis upon which the court set aside the sentence, stating:
'I'm setting aside the adjudication and sentence and permitting the defendant or arbitrarily on his behalf withdrawing his guilty plea . . .'
The court thereupon set a new trial date because the State represented that one of its key witnesses, upon learning that guilty pleas would be entered, had left town. The defendant was not even heard on such summary continuance.
Petitioner filed a suggestion for writ of prohibition in the district court and upon its denial filed this petition for writ of certiorari, urging conflict with Beckom.
This Court has consistently held that a trial judge in a criminal case may modify the sentence imposed upon a defendant during the same term of court, but this rule is subject of course to the constitutional guaranty against double jeopardy. Such constitutional guaranty is mainly designed to prevent a second punishment for the same crime.
'Hence, when a court has imposed a fine and imprisonment, where the statute only conferred power to punish by fine or imprisonment, and the fine has been paid, it cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former sentence.'
(Syllabus, Note 6)
Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874); Cf. United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 114, 75 L.Ed. 364 (1931).
In Benz the court held:
'The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall
In Beckom the court alluded to this constitutional prohibition while reversing the trial judge's sentence which Increased the previously imposed penalty. The court cited Deutschmann v. U.S., 254 F.2d 487 (9th Cir. 1958) which unequivocally held that: 'It is unconstitutional to increase a sentence after the prisoner began serving it.'
We also have the involvement here of a guilty plea having been accepted by the court which cannot lightly be withdrawn, particularly, as here, where it was not a withdrawal by the defendant who in fact objected to any withdrawal of his plea and the sentence thereon. The court instead 'arbitrarily' (the court's own word) literally 'handed the guilty pleas back' to the defendant. This Court in Ray v. State, 231 So.2d 813 (Fla.1970), stated:
In the instant case, the fact reflect that a voluntary plea of guilty was entered and sentence imposed and the hearing concluded. The record also indicates that there was no further contemplated hearing for that day in the cause; thus the matter was concluded for all purposes. Only then did a second assistant state attorney choose to inject himself into the case, to 'take up the cudgel' anew and to re-argue the presentence issue of adjudication vs. 'finding' of guilt upon which the trial judge had already emphatically ruled. Such indulgence is not the state attorney's privilege under these circumstances, nor can the court allow it. Our holding is consistent with Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), wherein our highest federal court in discussing 'plea bargaining', said:
2
Jeopardy had attached in petitioner's case and the sentence which had been imposed could not thereafter be increased (as the second assistant state attorney's position would do) in violation of defendant's constitutional guaranty not to be twice placed in jeopardy.
Conflict is apparent with the asserted case of Beckom v. State, Supra.
The district court opinion is quashed and the cause remanded for reinstatement of the trial judge's original sentences upon the pleas of guilty on the two offenses charged.
It is so ordered.
ADKINS...
To continue reading
Request your trial
-
State v. Houston
...have the power to reduce a previously imposed sentence. E. g. McClure v. District Court, 187 Colo. 359, 532 P.2d 340 (1975); Troupe v. Rowe, 283 So.2d 857 (Fla.1973); State v. Caldrone, 218 Kan. 471, 543 P.2d 1028 (1975); State v. Nine, 315 So.2d 667 (La.1975); State v. Eighth Judicial Dist......
-
King v. State, 93-1261
...v. State, 227 So.2d 232, 233 (Fla. 2d DCA 1969), citing Smith v. Brown, 135 Fla. 830, 832, 185 So. 732, 733 (Fla.1938); see Troupe v. Rowe, 283 So.2d 857 (Fla.1973). Just this year our supreme court extended Floridians' right to be free of double punishments to preclude alteration of terms ......
-
Rodriguez v. State, 82-262
...could be added without violating the double jeopardy clauses of the United States and Florida Constitutions. See also Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Smith v. Brown, 135 Fla. 830, 185 So. 732 (1938); Scott v. State, 419 So.2d 1178 (Fla. 3d DCA 1982); Andrews v. State, 357 So.2d 48......
-
Brown v. State, 48229
...of guilty to second-degree murder had been "accepted" by the trial judge. He relies principally on this Court's decision in Troupe v. Rowe, 283 So.2d 857 (Fla.1973). The state argues that further prosecution was not barred because Brown refused to testify against Benyard, an understood cond......