Florida Supreme Court Sends Case Back for Resentencing Using Mandatory Minimum – Dunbar v. State

May 16, 2012 by David S. Seltzer

As a Fort Lauderdale criminal defense lawyer, part of my job is to defend clients against abuses in the sentencing process as well as the criminal charges themselves. Criminal sentencing has gotten complicated, in part because of increasing numbers of laws created by political figures interested in looking “tough on crime” without care for the consequences of the laws. However, all defendants are entitled to due process of law and to generally have their rights respected by the courts – even when they have been found guilty. That’s why the Florida Supreme Court sent a case back for a new sentence in Dunbar v. State, in which the trial court forgot to orally pronounce a mandatory minimum sentence for Andre Isaiah Dunbar.

Dunbar, of Central Florida, was found guilty in 2009 of robbery with a firearm, grand theft and two counts of aggravated assault with a firearm. No details of the crime were included in the opinion, though the jury did find special circumstances that Dunbar actually possessed a firearm during the robbery and assault. At sentencing, the trial court orally pronounced a life sentence for the robbery charge. However, it failed to include the ten-year mandatory minimum sentence that is required for robbery with a firearm. The court added the mandatory minimum to its written sentencing order later, but Dunbar appealed, arguing that the mandatory minimum should be struck down because it didn’t match the oral sentence, creating two penalties for the same convictions. Dunbar appealed to the Fifth District, which declined to strike it down, finding the written sentence valid as a correction of the invalid oral sentence. For the same reason, it found no double jeopardy violation.

Because this conflicted with a 2010 decision from the Second District, the Florida Supreme Court took up the case. Ultimately, it approved of the Fifth District’s double reasoning on double jeopardy, but disagreed about the cure, sending the case back for resentencing. After noting that federal and Florida state double jeopardy protections are the same, the court outlined caselaw on corrected sentences and double jeopardy. It concluded that the imposition of a more severe corrected sentence does not violate double jeopardy unless it disrupts the defendant’s legitimate expectations of finality. In this case, Dunbar had no legitimate expectation of finality because trial courts have no discretion to vary from mandatory minimums – at least until the time to appeal has run out. However, the court agreed with Dunbar that he had a due process right to be present when the court increased the terms of his sentence. Thus, it upheld the Fifth District’s reasoning (and disapproved the Second), but remanded for resentencing with Dunbar present.

I appreciate the due process aspect of this decision, which at the very least should remind courts that defendants have the right to be present at sentencing. However, as a Miami robbery criminal defense attorney, I am less enthusiastic about the high court’s reasoning on double jeopardy. Though the result may conform to state and federal law, it may open some dangerous doors. For example, the Florida Supreme Court saw no distinction between an increase in a sentence following remand and an increase in a sentence that the court assumes on its own, as long as that’s done within the time required for an appeal. In order for a sentence to be increased on remand, of course, there must be an entire appeal, with all the due process and legal protections offered to parties on appeal. By contrast, a trial court acting on its own offers none of these. As a South Florida assault criminal defense lawyer, I believe criminal defendants’ rights should be protected and subject to court scrutiny just like everyone else’s.

Seltzer Law, P.A., represents clients across Florida who are facing criminal charges of all kinds. If you’re charged with anything that threatens your job, family, finances and future, don’t wait to call us for a free, confidential consultation. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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