Opinion
No. 93-1494.
April 26, 1994.
Appeal from the Circuit Court for Dade County, Jeffrey Rosinek, J.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., and David T. Sale, Certified Legal Intern, for appellee.
Before NESBITT, COPE and LEVY, JJ.
ON MOTION FOR REHEARING
On motion for rehearing, this court substitutes the following opinion for the original opinion of February 8, 1994.
A trial court adjudicated Rosemarie Jafrancois guilty of third-degree felony child abuse, § 827.04(1), Fla. Stat. (1989), and sentenced defendant to 364 days in jail and five years on probation. Thereafter, this court affirmed the conviction but vacated her sentence and remanded for resentencing in Jafrancois v. State, 615 So.2d 866 (Fla. 3d DCA 1993), holding the trial court had erred in imposing the sentence, as the jail term combined with the probationary period exceeded the five-year statutory maximum sentence for a third-degree felony.
On remand, the judge reduced the five-year term of probation to four years. The judge then expressed his concern for the safety of the child. The judge was advised that a juvenile dependency case had been instituted. The trial judge then ordered that Jafrancois "must abide by the orders of the Juvenile Court dependency case" as a special condition of Jafrancois' probation. This appeal followed. We affirm.
As stated in North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079, 23 L.Ed.2d 656, 668 (1969):
A trial judge is not constitutionally precluded . . . from imposing a new sentence, whether greater or less than the original sentence, in light of events subsequent to the first trial that may have thrown new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.'See Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337, 1341 (1949). "[T]he punishment should fit the offender and not merely the crime." Williams, 337 U.S. at 247, 69 S.Ct. at 1083. Here, the record reflects a dependency hearing was merely anticipated at the time of the original sentencing. Therefore, the juvenile court proceedings and resulting orders regarding the mother's interaction with the child were events subsequent to the first trial, which the judge was permitted to take into account in resentencing the defendant. Pearce, 395 U.S. at 721-23, 89 S.Ct. at 2079. See United States v. Durbin, 542 F.2d 486 (8th Cir. 1976). Identification of new information justified the addition of the special condition and overcame the general presumption of vindictiveness which otherwise prohibits such action. See Weekly v. State, 584 So.2d 78 (Fla. 3d DCA 1991).
Accordingly, the order under review is affirmed.
NESBITT and LEVY, JJ., concur.
I agree that there had been a material change in circumstances between the time of the original sentencing and the resentencing, which change was properly taken into account at resentencing.
Affirmance is in order for an additional independent reason. This appeal is completely without merit. At the resentencing hearing there was extensive discussion of the proposed special condition of probation. Defense counsel asked to have a moment to consult with his client. After that consultation, defense counsel went on the record and stated, "Judge, my client will agree to have a special condition of probation that she will abide by all the orders that are entered by the Juvenile Court in the dependency case." The State concurred, and the condition was imposed pursuant to that agreement. Defendant cannot now claim that imposition of that very condition was error. The issue is not properly preserved for appellate review.