        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                       STEVEN JOSEPH KOPSON,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-1610

                             [October 15, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona M. Holmes, Judge; L.T. Case No. 08010013CF10A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   In appealing his resentencing for several convictions, including DUI
manslaughter, appellant claims that the trial court violated double
jeopardy by increasing his original sentence. The increase occurred
because of the application of jail credit. In his original sentence, the court
applied jail credit to each of his consecutive sentences. In resentencing,
the court acknowledged that this was legally erroneous and applied the
credit to only the first of the consecutive sentences. We affirm because the
court can correct an erroneous award of jail credit in a new sentencing
proceeding without violating double jeopardy principles.

   In Kopson v. State, 125 So. 3d 169, 170 (Fla. 4th DCA 2013), we
directed the trial court to vacate various counts on double jeopardy
grounds. We remanded to the trial court to conduct a new sentencing
proceeding, because in the original proceeding the trial court had
erroneously believed that it had no discretion to grant Kopson’s motion for
a downward departure. On resentencing, the trial court refused to
downwardly depart.
   At the state’s urging, however, the court changed the application of jail
credit. On the original sentence, the court had ordered jail credit of 1029
days on each of the various counts against him, which were to be served
consecutively. On resentencing, the court agreed with the state that jail
credit on consecutive sentences was legally erroneous, relying on
Steadman v. State, 23 So. 3d 811, 813 (Fla. 2d DCA 2009) (defendant
sentenced to consecutive sentences is not entitled to jail credit on each
sentence). Over appellant’s objection, the court provided for jail credit only
on the first sentence. This results in an increase in the time that appellant
has to serve, over what he would have served on the original sentence.

    Kopson claims that the increase in his sentence violates double
jeopardy, relying on Bailey v. State, 777 So. 2d 995 (Fla. 2d DCA 2000).
In Bailey, the trial court had corrected the award of jail credit more than
sixty days after the sentence was imposed. The defendant filed a motion
to correct an illegal sentence, which was denied. On appeal, the court held
that the trial court violated double jeopardy and had no authority to
rescind jail credits, even if the original award was improper. Bailey¸
however, did not involve a resentencing, which is a de novo proceeding.

   Because the correction of jail credits in this case occurred upon
resentencing, we find that Williams v. State, 124 So. 3d 286 (Fla. 2d DCA
2013), provides the proper analysis. The Williams court held that
correction of jail credits on resentencing, even if it results in a harsher
sentence, does not violate double jeopardy. The court explained:

         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, 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).

Id. at 288 (footnote omitted).

  A harsher sentence upon resentencing does not violate double jeopardy
when the prisoner has no “legitimate expectation of finality” in the

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sentence. Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012). Dunbar relied
on Harris v. State, 645 So. 2d 386 (Fla. 1994), in which a defendant was
sentenced without the trial court imposing a habitual offender sentence.
He appealed his conviction and sentence, and while on appeal the supreme
court issued an opinion which clarified that habitualization should have
been imposed for a defendant in Harris’s circumstances. After Harris
succeeded in his appeal on other grounds, the trial court on remand
imposed a habitual offender sentence, prompting Harris to appeal,
claiming a violation of double jeopardy. The court rejected his claim,
because he had no expectation in the finality of his sentence when he
sought reversal of his sentence on appeal. Harris, 645 So. 2d at 388.

    Similarly, in this case, the court erred when it originally imposed a
sentence awarding the same jail credit on each consecutive sentence. It
acknowledged that error in resentencing and awarded the jail credit as it
should have done in the original proceeding, relying on Steadman, which
had been decided subsequent to the original sentencing in this case. The
trial court noted that this court had ordered a new sentencing proceeding,
thus giving the court jurisdiction to enter the correct jail credit.
Procedurally, this case is no different than Harris. Appellant had no
expectation of finality in the original sentence.

   The appellant also argues that his harsher sentence is presumed to be
vindictive and violative of due process under the principles of North
Carolina v. Pearce, 395 U.S. 711 (1969), partially overruled on other
grounds by Alabama v. Smith, 490 U.S. 794, 801 (1989). In Pearce, the
court held that due process prevents vindictiveness in sentencing a
defendant after a successful appeal.

          In order to assure the absence of such a motivation, we
      have concluded that whenever a judge imposes a more severe
      sentence upon a defendant after a new trial, the reasons for
      his doing so must affirmatively appear. Those reasons must
      be based upon objective information concerning identifiable
      conduct on the part of the defendant occurring after the time
      of the original sentencing proceeding.

Id. at 726.

   Because the original sentence was not a valid sentence, as it improperly
awarded jail credit to be applied to each consecutive sentence, even if there
is a presumption of vindictiveness under Pearce, we conclude that the
presumption was clearly rebutted. The trial court merely corrected a legal
error at resentencing, as demanded by the state. According to the

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transcript, this was not the first time the issue was raised. After the
original sentence was imposed, the state filed a motion to clarify the
sentence on the very issue of the award of jail credit, upon which the trial
court indicated it had not ruled because of the pendency of the appeal.
Jurisdiction having returned to the trial court to conduct a new sentencing
proceeding, the court understood that case law required it to award jail
credit only on the first of consecutive sentences. The reason for increasing
appellant’s sentence affirmatively appears on the record and has nothing
to do with vindictiveness. See Texas v. McCullough, 475 U.S. 134, 138-39
(1986).

  For the foregoing reasons, we conclude that the court did not err in its
award for jail credit. We therefore affirm the appellant’s sentence.

CONNER and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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