Tuesday, April 22, 2008

Increased Punishment Upon Resentencing

The constitutions of Florida and the United States impose no limitations whatever upon the power to retry a defendant who has succeeded in getting his or her first conviction set aside.(1) A corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.(2) That a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant for these purposes.(3) A defendant who has previously been sentenced may thus be resentenced upon remand from an appellate court, upon the trial court’s granting of a motion to correct a sentencing error pursuant to Fla. R. Crim. P. 3.800, or upon vacatur of the sentence for fraud or misrepresentation, without running afoul of due process, equal protection, or double jeopardy considerations. These constitutional guarantees also impose no restrictions upon the length of a sentence imposed upon resentencing.

The controlling constitutional principle in the double jeopardy guarantee is a prohibition against multiple trials, and even this protection is not absolute.(4) The double jeopardy guarantee does not confer immunity from punishment because of a defect sufficient to constitute reversible error in previous proceedings.(5) The double jeopardy clause is not an absolute bar to the imposition of an increased sentence on remand from appellate review of an issue of law concerning the original sentence.(6) This is because sentences do not have the constitutional quality of finality that attends an acquittal.(7)

For example, a defendant who was erroneously sentenced as a habitual offender on the basis of offenses that did not qualify him for such status (e.g., use of a misdemeanor prior conviction mistaken for a felony), and the defendant successfully has the sentence overturned as illegal, on remand the State is free to introduce any other convictions which qualify the defendant as a habitual offender and the court may so sentence the defendant.(8) Similarly, upon remand for resentencing of a defendant after reversal of the sentence, if the trial court lawfully could have imposed a multiplier at the time of the original sentencing, double jeopardy principles are not violated where the trial court imposes the multiplier at sentencing after remand.(9) Where, however, the trial court expressly elects not to sentence as a habitual offender, such an election constitutes a determination that cannot be revisited without violating double jeopardy, and so the court which has made such an election is precluded from imposing a habitual offender sentence on remand.(10)

The rationale for this part of our constitutional jurisprudence rests ultimately upon the premise that the original sentence has, at the defendant’s behest or as a result of the defendant’s fraud or misrepresentation, been wholly nullified and the slate wiped clean. As to whatever punishment has actually been suffered under the first sentence, that premise is a fiction, but, so far as that part of the sentence that has not yet been served, it will never be served.(11) This also supports the policy considerations that sanctions imposed are always proportionate to the seriousness of the offense of conviction and the defendant’s criminal history, and that offenders with similar offenses will receive similar sanctions.

1. See, e.g., Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919); Bryan v. United States, 338 U.S. 552, 70 S. Ct. 317, 94 L. Ed. 335 (1950); Forman v. United States, 361 U.S. 416, 80 S. Ct. 481, 4 L. Ed. 2d 412 (1960); United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964).

2. In Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919), the defendant was convicted of first-degree murder and sentenced to life imprisonment. After reversal of this conviction, the defendant was retried, reconvicted of the same offense, and sentenced to death. The United States Supreme Court upheld the conviction against the defendant’s claim that his constitutional right not to be twice put in jeopardy had been violated. See also, Murphy v. Massachusetts, 177 U.S. 155, 20 S. Ct. 639, 44 L. Ed. 711 (1900).

3. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

4. See, United States v. DiFrancesco, 449 U.S. 117, 132, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980).

5. See, United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980).

6. See, Harris v. State, 645 So. 2d 386 (Fla. 1994).

7. See, United States v. DiFrancesco, 449 U.S. 117 at 130, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980); see also, Goene v. State, 577 So. 2d 1306 (Fla. 1991).

8. See, Singleton v. State, — So. 2d —, 2007 WL 2712037 (Fla. Dist. Ct. App. 4th Dist. 2007); Margiotti v. State, 844 So. 2d 829 (Fla. Dist. Ct. App. 3d Dist. 2003); Plute v. State, 835 So. 2d 368 (Fla. Dist. Ct. App. 2d Dist. 2003); Gordon v. Moore, 832 So. 2d 880, 887 (Fla. Dist. Ct. App. 3d Dist. 2002); Deleveux v. State, 762 So. 2d 1062 (Fla. Dist. Ct. App. 3d Dist. 2000).

9. Trotter v. State, 825 So. 2d 362 (Fla. 2002) (imposition of drug trafficking multiplier at sentencing after remand).

10. Spencer v. State, 739 So. 2d 1247 (Fla. Dist. Ct. App. 1st Dist. 1999) (Habitual Violent Felony Offender); Grimes v. State, 616 So. 2d 996 (Fla. Dist. Ct. App. 1st Dist. 1992) (Habitual Offender).

11. See, North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

No comments: