Peter Felix Armstrong v. State of Florida , 264 So. 3d 1114 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-4528
_____________________________
PETER FELIX ARMSTRONG,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Judge.
February 18, 2019
PER CURIAM.
We agree with Appellant that the trial court should have
corrected an illegal sentence. Appellant pleaded to DUI with
property damage (count III), and leaving the scene of an accident
involving unattended property (count IV). Following a jury trial,
he was adjudicated guilty of DUI manslaughter (count I), and
leaving the scene of an accident with property damage (count II).
He was sentenced to fifteen years in prison on count I, time served
on counts II and IV, and one year of probation on count III. The
sentences on counts I and III were to run consecutively.
After Appellant had served four years on count I, the trial
court granted Appellant’s 3.850 motion and vacated his judgment
and sentence as to count I alone. Appellant was released on bond,
and ordered to report to state probation for supervision on count
III. He argues that he in fact served his probation on count III
satisfactorily, as evidenced by a letter from the Department of
Corrections stating exactly that, which Appellant filed with his
motion to correct illegal sentence and filed again with his motion
for rehearing of the trial court’s order dismissing the original
motion. Meanwhile, over a year after the lower tribunal vacated
the judgment and sentence on count I, the State amended the
information, essentially substituting a count of vehicular homicide
for the DUI manslaughter count. Appellant pleaded nolo
contendere to this new count in exchange for a sentence of over
nine years in prison followed by five years on probation. However,
in its Order of Probation, the court sentenced Appellant on count
III to another year on probation.
The record reflects that Appellant began serving his sentence
on count III the day the court vacated his judgment and sentence
as to count I. He completed the probationary sentence on count III
on February 28, 2017. He provided evidence of this in the form of
a DOC letter, the authenticity and accuracy of which neither the
State nor the trial court challenged. The trial court therefore
improperly resentenced Appellant for count III three months after
he completed his sentence, violating Appellant’s right to be free
from double jeopardy. U.S. Const. amend. V; Art. I, § 9, Fla. Const.;
Sneed v. State, 749 So. 2d 545, 546 (Fla. 4th DCA 2000) (quoting
Palmer v. State, 182 So. 2d 625, 626–27 (Fla. 4th DCA 1966)). On
remand, the trial court should grant Appellant’s motion to correct
his illegal sentence and vacate his new sentence on count III.
REVERSED and REMANDED.
RAY, KELSEY, and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
2
Robert David Malove of the Law Office of Robert David Malove,
P.A., Fort Lauderdale, for Appellant.
Ashley B. Moody, Attorney General; and Jennifer J. Moore,
Assistant Attorney General, Tallahassee, for Appellee.
3