Walker v. State, No. 2D06-4871.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPer Curiam
Citation988 So.2d 6
Decision Date21 December 2007
Docket NumberNo. 2D06-4871.
PartiesAlexander WALKER, Jr., Appellant, v. STATE of Florida, Appellee.
988 So.2d 6
Alexander WALKER, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D06-4871.
District Court of Appeal of Florida, Second District.
December 21, 2007.

James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

[988 So.2d 7]

PER CURIAM.


Alexander Walker, Jr., appeals a judgment for trafficking in heroin and the resulting sentence of life imprisonment as a habitual felony offender. We affirm without further discussion the conviction. However, we reverse the sentence and remand for resentencing within the Criminal Punishment Code guidelines. See § 921.0022, Fla. Stat. (2003). This case is controlled by this court's opinion in Walker v. State, 964 So.2d 886 (Fla. 2d DCA 2007), a case involving the same defendant.1 The trial court in this case expressly relied upon the evidence presented at the sentencing hearing in the prior case to impose the habitual felony offender sentence now at issue.

As explained in Walker, at sentencing the State presented certified copies of prior convictions to support its contention that Mr. Walker qualified for sentencing as a habitual felony offender. See § 775.084(1)(a), (4)(a), Fla. Stat. (2003). Mr. Walker's name is not particularly unique. In fact, the information recorded his name as "Alexander Walker, Jr." At least one of the judgments proffered by the State involved a defendant with a name other than "Alexander Walker." The State did not present any evidence connecting each of these judgments to Mr. Walker, such as fingerprint comparison testimony, even after Mr. Walker objected that the judgments themselves were insufficient proof that the judgments involved him and therefore permitted sentencing as a habitual felony offender.

As we did in Walker, we reverse the habitual felony offender sentence imposed in this case based upon the same evidence. Because Mr. Walker objected to the sufficiency of this evidence at the original sentencing hearing, on remand Mr. Walker must be sentenced within the guidelines. See Walker, 964 So.2d at 886-87; see also Collins v. State, 893 So.2d 592 (Fla. 2d DCA 2004), review granted, State v. Collins, 929 So.2d 1054 (Fla.2006); Wallace v. State, 835 So.2d 1281 (Fla. 2d DCA 2003); Rivera v. State, 825 So.2d 500 (Fla. 2d DCA 2002); Reynolds v. State, 674 So.2d 180 (Fla. 2d DCA 1996). As we did in both Walker and Collins, we certify that our decision is in direct conflict with the decisions in Wilson v. State, 830 So.2d 244 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 746 (Fla. 4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We now add to this list Rich v. State, 814 So.2d 1207 (Fla. 4th DCA 2002).

Affirmed in part, reversed in part, and remanded for resentencing; conflict certified.

VILLANTI and LaROSE, JJ., Concur.

ALTENBERND, J., Concurs specially with an opinion in which VILLANTI and LaROSE, JJ., Concur.

---------------

Notes:

1. The State has sought review of Walker, 964 So.2d 886, in the Florida Supreme Court, and the appeal has been assigned case number SC07-1866. That case has been stayed, however, pending the outcome in Collins v. State, 893 So.2d 592 (Fla. 2d DCA 2004), review granted, State v. Collins, 929 So.2d 1054 (Fla. 2006), which presents a similar issue.

---------------

ALTENBERND, Judge, Concurring specially.

I agree that Mr. Walker's conviction should be affirmed. I also agree that under the circumstances the sentence must be reversed because the State did not present the necessary predicate to establish that the prior judgments were in fact

988 So.2d 8

judgments of Mr. Walker. As I have previously noted in Lloyd v. State, 844 So.2d 713, 713 (Fla. 2d DCA 2003) (Altenbernd, J., concurring), I disagree that anything other than a de novo sentencing hearing is required on remand. Were we writing on a clean slate, I would follow the First, Fourth, and Fifth Districts in concluding that this evidentiary error does not preclude the State from seeking a habitual felony offender sentence on remand.

There is no doubt that double jeopardy is not implicated in this case because Mr. Walker has successfully sought reversal of the sentence in this appeal. See North Carolina v. Pearce, 395 U.S. 711, 719-21, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Harris v. State, 645 So.2d 386, 388 (Fla.1994). Generally, courts have held that once a defendant successfully challenges his sentence on appeal and the cause is remanded for resentencing, the resentencing is a "de novo" proceeding, at which either side may present evidence anew regarding the appropriate sentence. See, e.g., Baldwin v. State, 700 So.2d 95, 96 (Fla. 2d DCA 1997); see also Harris, 645 So.2d at 388; Trotter v. State, 825 So.2d 362 (Fla.2002); Davis v. State, 884 So.2d 1058 (Fla. 2d DCA 2004). See also Walker, 964 So.2d at 887 (Villanti, J., concurring).

Our precedent to the contrary in cases such as Walker, Collins, Wallace, Rivera, and Reynolds thus relies not upon the usual principles applied in criminal cases, but instead upon a premise generally applied in a civil context—that a litigant should not be provided a "second bite at the apple" to present evidence he or she previously neglected to present despite having sufficient opportunity to do so. See, e.g., Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992). This explains our court's decision to distinguish between those cases in...

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8 practice notes
  • Shuler v. Wellhausen, CASE NO. 8:10-CV-1678-T-27AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2013
    ...the trial court's pronouncement of a non-habitual sentence in the original proceeding does not violate double jeopardy); Walker v. State, 988 So. 2d 6, 8 (Fla.2007) (Altenbernd, J., concurring specially) ("There is no doubt that double jeopardy is not implicated in this case because Mr. Wal......
  • Walker v. Sec'y, Case No. 8:14-cv-2535-T-33AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 21, 2015
    ...did not present sufficient proof to establish he qualified as a HFO. Walker v. State, 964 So.2d 886 (Fla. 2d DCA 2007); Walker v. State, 988 So.2d 6 (Fla. 2d DCA 2007). The state appellate court remanded for resentencing under the Criminal Punishment Code. Id.1 The Florida Supreme Court qua......
  • Forman v. State, Case No. 2D18-4740
    • United States
    • Court of Appeal of Florida (US)
    • December 2, 2020
    ...is a ‘de novo’ proceeding, at which either side may present evidence anew regarding the appropriate sentence." Walker v. State, 988 So. 2d 6, 8 (Fla. 2d DCA 2007) (Altenbernd, J., concurring specially), quashed on other grounds by State v. Walker, 992 So. 2d 232 (Fla. 2008) ; see also Heatl......
  • Dean v. State, No. 4D18-2406
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 2020
    ...and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’ " (citation omitted)); Walker [v. State , 988 So. 2d 6, 8 (Fla. 2d DCA 2007) ] (Altenbernd, J., concurring specially) ("Generally, courts have held that once a defendant successfully challenges his s......
  • Request a trial to view additional results
8 cases
  • Shuler v. Wellhausen, CASE NO. 8:10-CV-1678-T-27AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 30, 2013
    ...the trial court's pronouncement of a non-habitual sentence in the original proceeding does not violate double jeopardy); Walker v. State, 988 So. 2d 6, 8 (Fla.2007) (Altenbernd, J., concurring specially) ("There is no doubt that double jeopardy is not implicated in this case because Mr. Wal......
  • Walker v. Sec'y, Case No. 8:14-cv-2535-T-33AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • October 21, 2015
    ...did not present sufficient proof to establish he qualified as a HFO. Walker v. State, 964 So.2d 886 (Fla. 2d DCA 2007); Walker v. State, 988 So.2d 6 (Fla. 2d DCA 2007). The state appellate court remanded for resentencing under the Criminal Punishment Code. Id.1 The Florida Supreme Court qua......
  • Forman v. State, Case No. 2D18-4740
    • United States
    • Court of Appeal of Florida (US)
    • December 2, 2020
    ...is a ‘de novo’ proceeding, at which either side may present evidence anew regarding the appropriate sentence." Walker v. State, 988 So. 2d 6, 8 (Fla. 2d DCA 2007) (Altenbernd, J., concurring specially), quashed on other grounds by State v. Walker, 992 So. 2d 232 (Fla. 2008) ; see also Heatl......
  • Dean v. State, No. 4D18-2406
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 2020
    ...and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’ " (citation omitted)); Walker [v. State , 988 So. 2d 6, 8 (Fla. 2d DCA 2007) ] (Altenbernd, J., concurring specially) ("Generally, courts have held that once a defendant successfully challenges his s......
  • Request a trial to view additional results

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