Once Sentence Imposed Defendant Cannot Be Re-Sentenced to a Greater Term of Imprisonment

In Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), 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 habitual felony offender (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 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.