Williams v. State

124 So.3d 286

Christopher WILLIAMS, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–4260.

District Court of Appeal of Florida, Second District.

Sept. 18, 2013.

Christopher Williams, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Christopher Williams challenges an order denying his two-claim motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm as to claim one and reverse as to claim two.

Following a jury trial, Williams was convicted of and sentenced on five charges: attempted robbery, forty-five years' prison as a habitual felony offender (HFO); two counts of aggravated assault, thirty years each as an HFO; felonious possession of a firearm, three years unenhanced; and resisting an officer with violence, ten years as an HFO. All sentences were run concurrent, resulting in an overall sentence of forty-five years. We affirmed Williams' convictions but reversed his sentences due to improper multiple enhancements and an oral-written discrepancy. Williams v. State, 658 So.2d 612 (Fla. 2d DCA 1995). The resentencing court reduced four of the five sentences, retaining the HFO enhancement on all but the conviction for resisting with violence: attempted robbery, thirty years; aggravated assault, ten years each; resisting with violence, five years. Additionally, the court ran the sentence for resisting with violence (unenhanced) consecutive to the sentence for one of the aggravated assaults (enhanced) and ran these two sentences consecutive to the other sentences.¹ The aggregate sentence amounted, again, to forty-five years.

In claim one, Williams argued that the resentencing court failed to properly award prison credit and jail credit. Specifically, when the resentencing court changed two sentences to run consecutive, the court should have, Williams contended, awarded credit on these sentences for both time spent in prison after sentencing and time spent in county jail before sentencing. The resentencing court awarded these credits only on the sentences that remained concurrent.

Agreeing with Williams in part, the postconviction court applied prison credit to each of the sentences. However, the court declined to award jail credit to the two sentences run consecutive to the others, ruling that, upon resentencing, jail credit applies only to the chronologically first sentence in a series of consecutive sentences.

When, at original sentencing, the court imposes concurrent sentences on multiple convictions, credit for time spent in jail prior to sentencing must be awarded against each sentence. Daniels v. State, 491 So.2d 543, 545 (Fla.1986). In contrast, jail credit may be awarded only against the first of consecutive sentences at original sentencing. Steadman v. State, 23 So.3d 811, 813 (Fla. 2d DCA 2009); Canete v. Fla. Dep't of Corrs., 967 So.2d 412, 415–16 (Fla. 1st DCA 2007). Upon resentencingde novo, prison credit must be applied to each consecutive sentence. State v. Rabedeau, 2 So.3d 191, 193–94 (Fla.2009); see also Gisi v. State, 4 So.3d 613 (Fla.2009); Steadman, 23 So.3d at 812–13 (clarifying the distinction between jail credit and prison credit and noting that Rabedeau and Gisi concern prison credit only). The issue in the present case is whether, upon de novo resentencing when one or more sentences are changed from concurrent to consecutive, pre-original sentencing jail credit is to be applied only to the first of consecutive sentences, as in Steadman, or to each of the sentences, each of which has already begun to be served on a concurrent basis with the jail credit applied.

We conclude that because resentencing is a new proceeding, the court may essentially start afresh in the sentencing process and apply jail credit as in an original sentencing. See, e.g., State v. Collins, 985 So.2d 985, 989 (Fla.2008) (noting that “a resentencing must proceed as an entirely new proceeding and ... should proceed de novo on all issues bearing on the proper sentence” (citation and internal quotation marks omitted)). Even if the new sentence could be considered harsher than the original one,² double jeopardy is not implicated because “it does not offend double jeopardy principles to resentence a defendant to a harsher term when the original sentence was invalid.” Johnson v. State, 53 So.3d 360, 362 (Fla. 5th DCA 2011). As neither the resentencing court nor the postconviction court committed error, we affirm as to claim one.

In claim two, Williams argued that the nonhabitualized sentence for resisting with violence cannot run consecutive to the habitualized sentence for one of the aggravated assaults (count four) because both offenses arose out of a single episode. Additionally, attaching relevant pages from the trial transcript, he argued that this circumstance is demonstrable from the face of the record. See Johnson v. State, 809 So.2d 892, 892 (Fla. 2d DCA 2002) (“Johnson's claim is facially sufficient and can be brought pursuant to rule 3.800(a) because he alleges that it can be determined from the face of the record that the sentences are illegal.”). Acknowledging Hale v. State, 630 So.2d 521, 524 (Fla.1993), which held that two habitualized sentences cannot run consecutive when the underlying offenses arose out of a single episode, the postconviction court nevertheless denied the claim on the...