B.L.J. VS. STATE
Annotate this Case
Download PDF
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ** EUGENE JOHNSON, ** Appellant, vs. ** CASE NO. 3D03-2747 ** THE STATE OF FLORIDA, ** Appellee. LOWER TRIBUNAL NO. 03-9992 ** Opinion filed September 9, 2004. An Appeal from the Circuit Court for Miami-Dade County, David H. Young, Judge. Bennett H. Brummer, Public Defender, and Blumberg, Assistant Public Defender, for appellant. Howard K. Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee. Before SCHWARTZ, C.J., and SHEVIN, J., and DAUKSCH, James C., Jr., Senior Judge. PER CURIAM. Eugene Johnson appeals from eighty-three month sentences which were imposed after the trial court vacated his original sentences of forty-eight months, which Johnson had already begun to serve. month Because, under these circumstances, the eighty-three sentences violated Johnson s constitutional guarantee against double jeopardy, we reverse. In circuit court case number 03-9433, Eugene Johnson was charged with burglary, grand theft, and criminal mischief. In circuit court case number 03-9992, he was charged with burglary and criminal mischief. On August 21, 2003, Johnson pled guilty to the charges in both cases. Before the pleas were entered, the state announced in court that: 1) the sentencing guidelines provided for sentences between eighty-three months and thirtyfive years in state prison; 2) Johnson qualified for sentencing as a habitual offender; and 3) the state s plea offer was for fourteen years. allowed Johnson Over the state s objection, the trial court to plead guilty in exchange sentences of forty-eight months in state prison. for concurrent The court then accepted Johnson s guilty pleas, entered adjudications of guilt, and imposed concurrent sentences of forty-eight months. Written sentencing orders imposing concurrent forty-eight month sentences as a habitual offender were filed on August 28, 2003. Also on August 28, 2003, the state filed a Motion for Rehearing, seeking to have the 2 forty-eight month sentences vacated on departures the grounds from counsel s the that the sentencing objection, that motion sentences were downward guidelines. Over defense was The original granted. sentences were vacated by written order on September 9, 2003. At a subsequent resentenced hearing to on September concurrent his violated constitutional when the trial 2003, eighty-three imprisonment as a habitual offender. that 11, right court Johnson was terms of month Johnson appeals, arguing against double resentenced him jeopardy to was concurrent eighty-three month terms after the forty-eight month sentences were already underway. We agree. Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. . . . To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense. Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003) (citations omitted). See also Troupe v. Rowe, 283 So. 2d 857 (Fla. 1973) (finding that a sentence which increased had without been imposed violating a could not defendant s protection against double jeopardy). thereafter be constitutional That the sentences would have been reversed if the state appealed rather than file a motion for rehearing is of no consequence. State, 626 So. 2d 1364, 1365 (Fla. 3 1993) See Gartrell v. (holding that the filing of a motion to correct an illegal sentence will not serve as a substitute for a notice of appeal, even though the motion was filed within the time allowed for appeal ). The trial court lacked jurisdiction to correct sentences that could only be corrected on appeal. Id. at 1366. Accordingly, we reverse the eighty-three month sentences imposed at the resentencing hearing and remand with directions to reinstate the original forty-eight month sentences. Reversed and remanded with directions. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
