Williams v. State, 82-77

• Decision Date: 03 August 1982
• Docket Number: No. 82-77,82-77
• Citation: 417 So.2d 780
• Parties: James WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 780

417 So.2d 780

James WILLIAMS, Appellant, v. The STATE of Florida, Appellee.

No. 82-77.

District Court of Appeal of Florida,

Third District.

Aug. 3, 1982.

Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.

SCHWARTZ, Judge.

We again reject the claim that a sentence involving a longer period of imprisonment which is imposed as a result of a motion filed by the defendant to correct the original sentence under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) runs afoul of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Willis v. State, 413 So.2d 1290 (Fla. 3d DCA 1982).

It may also be observed that seeking Villery-related relief is always a matter of voluntary choice, with the possible consequences of that action fully and previously known to the movant. In this case, moreover, the trial court both specifically informed Williams what the corrected sentence would be and afforded him the opportunity, which he rejected, to withdraw the Villery motion if he wished to do so. Thus, both as a general rule and in this specific instance, an appellate consideration of the Pearce claim would seem to be barred by the doctrine of invited error. 3 Fla.Jur.2d Appellate Review § 294 (1978).

Affirmed.

DANIEL S. PEARSON, Judge, specially concurring.

I concurred in Willis v. State only because the post-Villery change of sentence was from five years probation with a special condition of three years incarceration to five years imprisonment; I concur here because the change is from fifteen years probation with a special condition of eight years incarceration to twelve years incarceration. In both cases, it can be fairly assumed (in the absence of some contrary showing which was neither made in Willis nor here) that the correction will not increase the defendant's actual time spent in prison and at most exchanges probation for parole.

But, as this court noted in Herring v. State, 411 So.2d 966, 970 n.11 (Fla. 3d DCA 1982):

"The genesis of Villery was the complaint that lengthy imprisonment as a condition of probation denied the prisoner parole consideration. The court in Villery undoubtedly assumed that a change from probation to an equal amount of incarceration would not result in any actual additional incarceration for the prisoner, who would theoretically be released on parole no later than he would be released on probation. However, where that is not the case, and a prisoner is 'punished' for exercising rights granted by Villery, a due process issue under North Carolina v. Pearce, supra, is presented. The imposition of a penalty upon a defendant for successfully pursuing a nonconstitutional rather than constitutional right is no less a violation of due process. North Carolina v. Pearce, supra, 395 U.S. at 724, 89 S.Ct. at 2080."

Thus, I think the majority goes too far in laying down an apparent ironclad rule that a change of sentence made because of Villery can never violate North...