District Court of Appeal of Florida, Fifth District.
James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
PER CURIAM.
C.T.B., a child, seeks a writ of habeas corpus, claiming that he was unlawfully committed to the Department of Juvenile Justice. C.T.B. was originally sentenced to a term of probation. Several weeks later, the trial judge sua sponte vacated the sentence in this case and resentenced C.T.B. to a level 8 program. We agree with C.T.B. that "a trial court is not free to change a valid and unchallenged sentence," Herring v. State, 411 So. 2d 966, 967 (Fla. 3d DCA 1982), and that the resentencing in this case violated double jeopardy. Id.; see also, E.D.C. v. State, 936 So. 2d 1215 (Fla. 5th DCA 2006). Therefore, we grant the petition for writ of habeas corpus. We order the trial court to vacate its commitment order and reinstate the originally-imposed probationary sentence. Additionally, C.T.B. shall be immediately released from the commitment program ordered in this case.
WRIT GRANTED.
GRIFFIN, TORPY, and LAWSON, JJ., concur.
