Opinion
No. 81-936.
May 18, 1982.
Appeal from the Circuit Court, Dade County, John A. Tanksley, J.
Michael C. Willis, in pro. per.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
This appeal is from a sentence corrected pursuant to Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). Appellant was originally placed on five years probation with a special condition that he serve three years imprisonment. On his motion to correct sentence the trial court vacated the probation and sentenced the defendant to five years imprisonment.
Appellant contends that the resentence constitutes greater punishment than was originally imposed and is therefore unconstitutional; that any interpretation of the Villery decision to sanction a harsher resentence is contrary to the limitations set out in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (to assure the absence of vindictiveness on the part of the judge against defendant for having successfully attacked his first conviction, whenever a judge imposes a more severe sentence after a new trial, he must affirmatively state the reasons and facts upon which such increased sentence is based).
In Villery, supra, the supreme court authorized the trial court, upon corrective resentencing, to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given, unless a condition of probation had been violated. This rule has been restated in several Florida cases. Gomez v. State, 409 So.2d 1096 (Fla. 3d DCA 1982). Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981). We must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy. Beech v. State, 411 So.2d 1384 (Fla. 1st DCA 1982) (question certified).
Affirmed.
As I have previously noted, see Herring v. State, 411 So.2d 966, 970 n. 11 (Fla. 3d DCA 1982), I do not agree that because a change of sentence complies with Villery, it cannot, ipso facto, violate due process under North Carolina v. Pearce. Yet I take this to be the majority's meaning when it declares that "[w]e must assume the court has already determined as a matter of law that a sentence, as corrected herein, is not a proscribed increase of sentence in violation of the constitutional guaranty against double jeopardy." (emphasis supplied). I concur, however, in the affirmance because there is not the slightest showing in the record that as a matter of fact the corrected sentence will increase the defendant's incarceration beyond three years.