Unger v. State

District Court of Appeal of Florida

Unger v. State

492 So. 2d 1168, 11 Fla. L. Weekly 1787, 1986 Fla. App. LEXIS 9326

CourtDistrict Court of Appeal of Florida

DecidedAugust 13, 1986

DocketNo. 85-2643

StatusPublished

Cited by2 cases

This text of 492 So. 2d 1168 (Unger v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Unger v. State, 492 So. 2d 1168, 11 Fla. L. Weekly 1787, 1986 Fla. App. LEXIS 9326 (Fla. Ct. App. 1986).

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Opinion

PER CURIAM.

We reverse the trial court’s order setting aside the appellant’s sentence and remand with directions that the original sentencing order be reinstated.

Months after placing the appellant on probation the trial court, upon motion of the state, set aside the order of probation and sentenced the appellant to a term of imprisonment upon a determination that the appellant had misrepresented her prior record at the previous sentencing hearing. Such action has been held to be a violation of a defendant’s federal and state constitutional rights not to twice be placed in jeopardy of punishment for the same offense. Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976). The state contends that the defendant here waived her double jeopardy rights during the initial sentencing. Our review of the record, however, fails to reflect such a waiver by appellant. Rather, the record reflects that appellant’s participation in the discussion between the court and counsel was limited to an affirmation of counsel’s response to an inquiry about restitution in a previous case in New Jersey. The record is also far from clear that the appellant herself either intended any misrepresentation about her prior record, or understood that her failure to furnish more detailed and precise information could result in a harsher sentence. We simply find an inadequate evidentiary basis to support a waiver of appellant’s double jeopardy rights.

ANSTEAD, GLICKSTEIN and STONE, JJ., concur.

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PER CURIAM.

We reverse the trial court’s order setting aside the appellant’s sentence and remand with directions that the original sentencing order be reinstated.

Months after placing the appellant on probation the trial court, upon motion of the state, set aside the order of probation and sentenced the appellant to a term of imprisonment upon a determination that the appellant had misrepresented her prior record at the previous sentencing hearing. Such action has been held to be a violation of a defendant’s federal and state constitutional rights not to twice be placed in jeopardy of punishment for the same offense. Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976). The state contends that the defendant here waived her double jeopardy rights during the initial sentencing. Our review of the record, however, fails to reflect such a waiver by appellant. Rather, the record reflects that appellant’s participation in the discussion between the court and counsel was limited to an affirmation of counsel’s response to an inquiry about restitution in a previous case in New Jersey. The record is also far from clear that the appellant herself either intended any misrepresentation about her prior record, or understood that her failure to furnish more detailed and precise information could result in a harsher sentence. We simply find an inadequate evidentiary basis to support a waiver of appellant’s double jeopardy rights.

ANSTEAD, GLICKSTEIN and STONE, JJ., concur.

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Bluebook (online)

492 So. 2d 1168, 11 Fla. L. Weekly 1787, 1986 Fla. App. LEXIS 9326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unger-v-state-fladistctapp-1986.

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