SC00-2586 Columbus Rickey Ashley V. State of Florida

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SC00-2586 Columbus Rickey Ashley V. State of Florida - New

State: Florida

Court: Supreme Court

Docket No: sc00-2586

Case Date: 01/09/2003

Plaintiff: SC00-2586 Columbus Rickey Ashley

Defendant: State of Florida - New

Preview:Supreme Court of Florida
No. SC00-2586
COLUMBUS RICKEY ASHLEY,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
REVISED OPINION
[January 9, 2003]
QUINCE, J.
We have for review Ashley v. State, 772 So. 2d 42 (Fla. 1st DCA 2000),
which expressly and directly conflicts with the decision in Evans v. State, 675 So.
2d 1012 (Fla. 4th DCA 1996).   We have jurisdiction.   See art. V, § 3(b)(3), Fla.
Const.   For the reasons expressed below, we approve the decision in Evans and
quash the decision in Ashley.
The issue in these two cases concerns whether a trial court can bring a
defendant back to court, vacate the sentence imposed, and resentence him to what

amounts to a more onerous sentence after he has begun serving the original
sentence, without violating the double jeopardy clause.   The facts of Ashley are as
follows.   Columbus Ashley was charged with possession of a firearm by a
convicted felon.   Prior to trial, the State filed a notice of intent to classify Ashley as
a habitual violent felony offender (HVFO) based on a previous robbery conviction.
At trial, the jury found Ashley guilty as charged on the possession offense.
Ashley’s status as a possible habitual violent felony offender was argued to
the trial judge by the prosecutor.   The trial judge was presented with Ashley’s
criminal history, and aggravating and mitigating circumstances were discussed.
Defense counsel acknowledged that Ashley had two prior felony convictions:
robbery and possession of cocaine.   An argument was made to the trial court that it
had discretion in whether to find and sentence Ashley as a habitual violent felony
offender.   At no time during this hearing on July 8, 1999,1 or the actual sentencing
on July 9, 1999, did the trial court pronounce Ashley a habitual violent felony
offender.
At the sentencing hearing on July 9, 1999, the trial court again indicated the
factors that supported aggravation and those in support of mitigation.   The court
1.   All the arguments and paperwork concerning prior judgments and
sentences, as well as the probation office’s report, were presented to the trial judge
on the day before the actual sentencing.
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then orally sentenced Ashley as a habitual felony offender (HFO), and sentenced
him to twenty-five years in prison.   The prosecutor was present and did not bring
to the court’s attention any failure to find Ashley a habitual violent felony offender.
The only issues addressed by the State at this point were restitution and a nolle
pros of the remaining counts.   The final statement made by the trial judge was,
“Take Mr. Ashley back to begin his sentence.”
However, the written judgment and sentence indicated that Ashley had been
sentenced as an HVFO to twenty-five years in prison with no minimum term noted
on the written sentencing form.   On July 12, 1999, Ashley reappeared in court, and
the trial judge orally resentenced him to twenty-five years in prison as an HVFO,
and for the first time imposed a ten-year minimum mandatory term.   The July 12
written sentencing order was consistent with the court’s July 12 oral
pronouncement.
Ashley filed a timely notice of appeal on July 15, 1999.   After notice was
given, but before the initial brief was filed, Ashley filed a motion to correct
sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2),
alleging that the resentencing on July 12, 1999, constituted a double jeopardy
violation.   The trial court did not rule on the motion; therefore, it was deemed
denied.   Ashley raised the double jeopardy claim on his direct appeal.   See Ashley
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v. State, 772 So. 2d 42 (Fla. 1st DCA 2000).   The First District rejected this claim,
finding that the trial court’s imposition of an HFO sentence “was the result of a
simple mistake about what had been noticed and then proven the day before.   It
was not a discretionary judgment based on the facts to impose a lighter sentence.”
Id. at 43.
The First District’s holding in Ashley is in conflict with the Fourth District’s
holding in Evans.   In Evans, the defendant pled and was adjudicated guilty for
possession of cocaine and aggravated battery.   As part of the plea agreement,
Evans agreed that he qualified as an HFO, and that he would be sentenced as an
HFO if he violated probation.   Evans violated his probation and was sentenced to
prison time as an HFO.   The sentences were suspended, and Evans was given
probation; however, the judgment of HFO status was never set aside.   As a result,
and by agreement of the parties, the court vacated the suspended sentences,
allowing Evans to be resentenced on his initial violation of probation.   At
resentencing, the trial court did not state that Evans was being sentenced as an
HFO; however, the written order did reflect that he was being habitualized.   Two
days later, the State filed a motion to clarify the sentence because the commitments
prepared by the court clerk did not reflect habitualization.   Evans objected on
grounds of double jeopardy, recalling that the court’s oral pronouncement did not
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mention habitualization.   The trial court then ordered that the commitments be
amended to reflect habitualization.
On appeal, the Fourth District recognized that the trial court’s failure to
impose habitualization during oral pronouncement may have been an oversight.
Nevertheless, the Fourth District found the trial court’s clarification to be in error,
holding that once a legal sentence is imposed, jeopardy attaches and the defendant
cannot be resentenced to a greater term of imprisonment.
We agree with the reasoning of the Fourth District.   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.   See, e.g.,
Lippman v. State, 633 So. 2d 1061 (Fla. 1994); Clark v. State, 579 So. 2d 109 (Fla.
1991); N.H. v. State, 723 So. 2d 889 (Fla. 5th DCA 1998).   To do so is a clear
violation of the Double Jeopardy Clause, which prohibits multiple punishment for
the same offense.   See State v. Wilson, 680 So. 2d 411, 413                              (Fla. 1996).   Here, the
trial court brought Ashley back to court and resentenced him to a more onerous
sentence after he had begun serving the original sentence.   The trial court’s actions
violated Ashley’s constitutional right against double jeopardy.
This Court has previously found that Florida’s sentencing procedures
prevent subsequent imposition of new terms to a previously announced sentence.
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For example, in Justice v. State, 674 So. 2d 123 (Fla. 1996), the defendant was
found guilty of two counts of forgery and placed on probation, subject to three
conditions.   However, the trial court entered a written judgment which contained
numerous probation conditions not orally pronounced at sentencing.   On appeal,
the Fifth District remanded the case to the trial court to resolve the discrepancy
between the probation conditions imposed at sentencing and those contained in the
written order.   Although the Fifth District held that the trial court could reimpose the
unannounced conditions at resentencing, it certified the issue to this Court as a
question of great public importance.
Upon review, this Court held that special conditions of probation must be
imposed at sentencing and may not be reimposed at resentencing.   This Court
based its decision in part “on a judicial policy that the actual oral imposition of
sanctions should prevail over any subsequent written order to the contrary.”   Id. at
125.   This Court further noted that written sentences are usually just a record of the
actual sentence required to be pronounced in open court.2   Thus, when conflict
2.   Florida Rule of Criminal Procedure 3.700(b) provides:
Every sentence or other final disposition of the case shall
be pronounced in open court, including, if available at the
time of sentencing, the amount of jail time credit the
defendant is to receive.   The final disposition of every
case shall be entered in the minutes in courts in which
minutes are kept and shall be docketed in courts that do
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arises between the written sentence and the oral pronouncement, the oral
pronouncement prevails.
This Court further noted that the subsequent imposition of new conditions or
terms to a sentence or order of probation violates the constitutional protection
against double jeopardy.   Adopting the reasoning of the dissent in the Fifth
District’s opinion, this Court opined:
An order of probation, like any other aspect of sentencing, ought
not to be a work in progress that the trial court can add to or subtract
from at will so long as he or she brings the defendant back in and
informs the defendant of the changes.   To permit this would mean a
lack of finality for no good reason and multiple appeals.   It is not too
much to ask of a sentencing judge to decide on and recite the special
conditions of probation at the sentencing hearing, just as is done with
the balance of the sentence.   If the court has omitted a condition it
wishes it had imposed, its chance has passed unless the defendant
violates probation.
Id. at 126 (quoting Justice v. State, 658 So. 2d 1028, 1035-36 (Fla. 5th DCA 1995)
(Griffin, J., dissenting)).   We also find this reasoning persuasive.   Our decision
today is consistent with this reasoning and with our earlier precedent.
Additionally, the First District’s decision in this case conflicts with a
longstanding principle of law-that a court’s oral pronouncement of sentence
controls over the written document.   See, e.g., State v. Jones, 753 So. 2d 1276,
not maintain minutes.
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1277 (Fla. 2000); State v. Williams, 712 So. 2d 762 (Fla. 1998); Justice, 674 So. 2d
at 126; Driver v. State, 710 So. 2d 652, 653 (Fla. 2d DCA 1998).   Generally, the
oral pronouncement prevails unless the oral pronouncement is in error due to a
clerical error such as the calculation of jail credit.   See Martindale v. State, 678 So.
2d 883, 884 (Fla. 4th DCA 1996).3
We recognize that the trial court’s failure to state during its oral
pronouncement of sentence that it was sentencing Ashley as a habitual violent
felony offender may have been a simple mistake.   However, based on the prior
precedent from this Court, we must approve the Fourth District’s opinion in Evans
and disapprove the First District’s decision in Ashley, because the oral
pronouncement of sentencing controls.   To hold otherwise does serious harm to
the double jeopardy principles which have guided our courts for centuries.   Thus,
we quash the decision under review and remand for proceedings consistent with
3.   Florida Rule of Criminal Procedure 3.800(b) specifically provides that a
motion to correct a scrivener’s error may be filed by the State.   A scrivener’s error
literally refers to a written error.   The definition for scrivener’s error in Black’s Law
Dictionary directs the reader to “[s]ee clerical error.”   Black’s Law Dictionary 1349
(7th ed. 1999).   However, we have defined scrivener’s error as those “clerical or
ministerial errors in a criminal case that occur in the written sentence, judgment, or
order of probation or restitution.   The term scrivener's error refers to a mistake in
the written sentence that is at variance with the oral pronouncement of sentence or
the record but not those errors that are the result of a judicial determination or
error.”   Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800, 761
So. 2d 1015, 1023 (Fla. 2000) (court commentary) (emphasis added).
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this opinion.
It is so ordered.
ANSTEAD, C.J., and PARIENTE, J., and SHAW, Senior Justice, concur.
PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.
HARDING, Senior Justice, dissents with an opinion, in which WELLS and
LEWIS, JJ., concur.
PARIENTE, J., concurring.
I concur fully in the majority opinion upon rehearing, although I have
struggled with the competing policies represented by the majority opinion and the
dissent.   I write separately to address the concerns expressed in the dissenting
opinion and why I felt compelled to join in this majority opinion.
When I concurred in the original majority opinion, I did so based on the
notion that the Court could characterize what occurred in this case as a "scrivener's
error."   However, I now recognize that an error in an oral pronouncement cannot be
properly labelled as "scrivener's error."4   My overriding concern is that for the
Court to endorse an exception that allows a trial court to "correct a mistake or
misstatement during the oral pronouncement," as suggested by the dissent would
run contrary to the constitutional principles of double jeopardy.
4.   Both "scrivener" and its synonym "scribe" have as their source the Latin
verb "scribere," meaning to write.   See Merriam-Webster's Collegiate Dictionary
1050 (10th ed. 1999)
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The law is clear that Ashley began serving his sentence upon conclusion of
the hearing in which the court made its oral pronouncement.   Troupe v. Rowe, 283
So. 2d 857 (Fla. 1973), is not easily distinguishable on this basis.   Here, as in
Troupe, jeopardy attached at the conclusion of the sentencing hearing in which the
court   pronounced sentence.
I simply cannot find room in our double jeopardy precedent for a "simple
misstatement" exception.   While in some cases, the possibility that the
pronouncement contained a "mistake" or "misstatement" may be apparent, in other
cases it may not be possible from the face of the record to discern if the trial
judge's pronouncement was a "misstatement" or a change in the sentence upon
further reflection.
Contrary to the dissent's suggestion, today's ruling does not result in
"immunity," as the term has been used in pertinent United States Supreme Court
precedent.   In United States v. DiFrancesco, 449 U.S. 117, 131 (1980), the Court
eschewed the notion that "sentencing should be a game in which a wrong move by
the judge means immunity for the prisoner" in holding that a federal statute
authorizing a government appeal from a sentence did not violate double jeopardy.
In Bozza v. United States, 330 U.S. 160, 166-67 (1947), whence this quote
originates, the Court held that the trial court could lawfully correct its error in failing
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to impose a mandatory fine.
In comparison, this case does not involve the State's right to appeal a
sentence, and imposition of the mandatory minimum term on a habitual offender is
discretionary.   See State v. Hudson , 698 So. 2d 831, 833 (Fla. 1997).   Elimination
of the discretionary ten-year mandatory minimum term leaves Ashley with a twenty-
five-year habitual offender sentence.   This is hardly "immunity for the prisoner," as
the term was used in DiFrancesco and Bozza.
I conclude that Cheshire v. State, 568 So. 2d 908 (Fla. 1990), on which the
dissent relies, is distinguishable because it concerned the State's statutory right to
appeal a downward departure sentence, which under DiFrancesco does not violate
double jeopardy.   We recognized in Cheshire that a reversal and remand for a
sentence within the guidelines was compelled by Pope v. State, 561 So. 2d 554
(Fla. 1990), where we held that no further departure is allowed upon remand from a
reversal of a departure sentence without written reasons.   See Cheshire, 568 So. 2d
at 913.   Precedent concerning state appeals of sentences that are contrary to
applicable rules or statutes is not analogous.
Nor does Florida Rule of Criminal Procedure 3.800(b) provide analogous
authority in support of the trial court's action in this case.   The Court Commentary
to the amendment creating this provision states that the State may file a rule
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3.800(b)(2) motion "only if the correction of the error will benefit the defendant or
correct a scrivener's error."   Amendment to Florida Rules of Criminal Procedure
3.111(e) & 3.800, 761 So. 2d 1015, 1023 (Fla. 2000) (emphasis added).   Neither
condition applies here.   First, imposition of the mandatory minimum term in this
case is obviously to the defendant's detriment.   Second, as the majority opinion
recognizes, the concept of a scrivener's error does not encompass an oral
pronouncement.   Nor can the definition be widened without undermining the
purpose of rule 3.800(b), which is to enable correction in the trial court of
sentencing errors that harm the defendant.   In this case, the defendant's attempt to
have the trial court rescind the mandatory minimum term is an example of the
appropriate use of rule 3.800(b).
The mandatory minimum term imposed on a habitual violent felony offender,
like a guidelines departure, "is an extraordinary punishment that requires serious and
thoughtful attention by the trial court."   Ree v. State, 565 So. 2d 1329, 1332 (Fla.
1990), receded from on other grounds by Smith v. State, 598 So. 2d 1063 (Fla.
1992).   Today's decision helps ensure that the imposition of the mandatory
minimum term authorized for a defendant who meets the criteria for a habitual
violent felony offender sentence will receive the careful attention it deserves at the
time that the sentence is imposed.
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Finally, while I appreciate the dissent's concerns for the plight of the trial
judge, these concerns cannot undermine the overriding constitutional concerns that
govern the principle of double jeopardy.   Undoubtedly, careful attention must be
paid to detail in the pronouncement of sentence.
This case highlights the critical importance of accuracy at the sentencing
hearing and the necessity of the State paying close attention to ensure that the oral
pronouncement contains no "misstatements."   Further, this case shows how the
integrity and accuracy of the sentencing process can be improved if the written
sentence is entered by the trial court at the same time as the oral pronouncement
during the original sentencing hearing, rather than days or even weeks later.5
ANSTEAD, C.J., concurs.
HARDING, Senior Justice., dissenting.
I respectfully dissent.   As the court below noted, “the Constitution does not
5.   This suggestion has been previously made by the Court's Criminal
Appeals Reform Act Committee.   Currently, the Office of State Courts
Administrator is involved in examining the feasibility of the technology necessary
for this to be done statewide.   Once developed, the technology should be made
available to enable all trial judges to enter the written sentence at the time of the oral
pronouncement.   Both the defendant and the State would be present to review and
sign the written sentence, further ensuring the integrity of the sentencing process
and the accuracy of the sentence imposed.
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require that sentencing should be a game in which a wrong move by the judge
means immunity for the prisoner.”   Ashley v. State, 772 So. 2d 42, 43 (Fla. 1st
DCA 2000) (quoting United States v. DiFrancesco, 449 U.S. 117, 135 (1980)).   As
the majority concedes, the trial judge simply misspoke.   During sentencing, instead
of saying "habitual violent felony offender," the judge said, "habitual felony
offender."   The judge left out one word: "violent."   Nevertheless, it is clear that the
whole purpose of the proceeding was to determine whether Ashley qualified as a
habitual violent felony offender.   The State’s notice was for habitual violent felony
offender status; at the hearing the parties focused solely on Ashley’s qualification
as a habitual violent felony offender;6 and the written order of July 9 states that
Ashley was being adjudicated as a habitual violent felony offender.   Under these
circumstances, Ashley had no right to rely on the judge's simple misstatement, and
thus he had no legitimate expectation of finality.   Accordingly, jeopardy did not
attach at that hearing.   When the trial judge realized the mistake, Ashley was brought
6.   In fact, at the sentencing hearing, defense counsel noted that Ashley had
two prior felony convictions:   robbery and possession of cocaine.   Defense
counsel pointed out that the trial court had broad sentencing discretion, from the
mandatory minimum ten years to a maximum of thirty years.   A comparison of
section 775.084(4)(a), Florida Statutes (1999) (habitual felony offenders) and
section 775.084(4)(b) (habitual violent felony offenders) reveals that only the latter
contains a mandatory mandatory term.   Hence, it is clear from the record that
defense counsel believed that Ashley was being sentenced as a habitual violent
felony offender.
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back into court and advised by the judge that:
We brought you back today because I made a mistake in the
sentencing in that I sentenced you as an habitual felony offender and
there was no such notice filed.   However, there was an habitual violent
offender notice filed.   Therefore, let’s go back and I’ll set aside that
earlier sentence and resentence the defendant at this time.
The court orally sentenced Ashley to twenty-five years in prison as a habitual
violent felony offender and for the first time imposed a ten-year mandatory
minimum term.   Defense counsel did not object at the resentencing.
This Court’s opinion in Cheshire v. State, 568 So. 2d 908 (Fla. 1990), is
directly on point.   In that case, the State filed a cross-appeal, 7 contending that the
trial court erroneously departed downward from the sentencing guidelines without
written reasons when the court imposed a seven-year sentence upon the defendant
for burglary.   Although the defendant conceded that the trial court erred, the
defendant asserted that double jeopardy precluded the imposition of a greater
sentence on remand.   This Court disagreed, concluding that “[d]ouble jeopardy
does not guarantee a defendant the benefit of a judge’s good-faith mathematical or
clerical errors.”   Id. at 913.
Florida Rule of Criminal Procedure 3.800(b) specifically provides that a
7.   In Cheshire, the trial court imposed a sentence of death, and therefore this
Court had mandatory appellate jurisdiction in the case pursuant to article V, section
3(b)(1) of the Florida Constitution.
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motion to correct a sentencing error may be filed by the State to correct a
scrivener's error.   A mistake or misstatement made during the oral pronouncement
of a sentence is analogous to a scrivener’s error.   Therefore, consistent with rule
3.800(b) and Cheshire, I would hold that a trial court, on its own motion, can
correct a mistake or misstatement made during the oral pronouncement of a
sentence, as was done in the case below.8
The majority’s opinion in this case will turn sentencing hearings into the
game-like atmosphere that the Supreme Court condemned in DiFrancesco.
Unfortunately, the stakes of this game are very high.   Undeserving defendants stand
8.   Ashley is distinguishable from Troupe v. Rowe, 283 So. 2d 857 (Fla.
1973), and other similar cases.   In Troupe, the defendant was charged with
breaking and entering and grand larceny.   During plea negotiations, the defendant
and the State agreed upon a sentence of thirty days in jail followed by two years'
probation, but the parties disagreed regarding whether there should be a “finding of
guilt” or an adjudication.   The trial court agreed with the defendant and entered a
finding only, thereby allowing the defendant to return to military duty after his
release.   The defendant was sentenced accordingly, and the court took a recess.
Shortly thereafter, a new assistant state attorney reiterated the State's objection to a
“finding” rather than an adjudication.   After a lengthy discussion, the court
eventually set aside the earlier plea and sentence and ordered that the case proceed
to trial.   The defendant sought a writ of prohibition in the district court, and upon
its denial, filed a petition for writ of certiorari with this Court.   This Court ultimately
held that “[j]eopardy 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.”   Id. at 860.   Based on the facts of Troupe, it is
clear that the trial court’s actions were not the result of a mistake or misstatement.
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to gain much at the slightest slip of a judge’s hand or tongue.   The undue burden
this Court places on sentencing judges is unrealistic.   Without question, the losers
of the game will be the citizens of this state.
WELLS and LEWIS, JJ., concur.
Application for Review of the Decision of the District Court of Appeal -
Direct Conflict
First District - Case No. 1D99-2736
(Duval County)
Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Charlie Crist, Attorney General, James W. Rogers, Tallahassee Bureau Chief,
Criminal Appeals, and Trisha E. Meggs, Assistant Attorney General, Tallahassee,
Florida,
for Respondent
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