Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 5, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1863 Lower Tribunal No. 15-21185 ________________ Cesar Martinez, Appellant, vs. The State of Florida, Appellee. An appeal from the Circuit Court for Miami-Dade County, Victoria del Pino, Judge. Xander Law Group, P.A., and Wayne R. Atkins; Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for appellant. Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee. Before LINDSEY, HENDON, and MILLER, JJ. MILLER, J. Appellant, Cesar Martinez, challenges his sentence for vehicular homicide, in violation of section 782.071(1)(a), Florida Statutes, and driving without a license resulting in death, in violation of section 322.34(6), Florida Statutes. On appeal, Martinez contends his punishment is illegal because the lower tribunal imposed a second increased sentence after he commenced serving a previous sentence, in violation of the double jeopardy clauses of the Constitutions of the United States and the State of Florida. For the reasons set forth below, we reverse and remand for further proceedings. BACKGROUND Three years after a catastrophic motor vehicle crash tragically claimed the life of his ex-girlfriend, Idalys Quintero, Martinez was charged with vehicular homicide and driving without a license resulting in death. Martinez entered an open plea of guilty to the charges encapsulated in the information. The trial court classified Martinez as a youthful offender and sentenced him to 364 days of incarceration, to be mitigated upon the successful completion of the Miami-Dade County Boot Camp Program.1 See § 958.04(2), Fla. Stat. (2019). The specified jail term was to be immediately followed by a term of extended supervision, involving required participation in boot camp aftercare and fulfilling other specified court-ordered conditions. 1 At the time of the incident, Martinez was fifteen years of age. 2 Martinez duly enrolled in boot camp, but purportedly as the result of head injuries sustained in the accident giving rise to his criminal charges, was deemed unsuitable for both the program and its low-impact counterpart. Martinez then filed a motion seeking to avail himself of the 364 days of confinement. Upon his return to court, the lower tribunal vacated the original sentence and resentenced him to three years’ incarceration followed by three years’ probation. The instant appeal ensued. STANDARD OF REVIEW “A determination of whether double jeopardy is violated based on undisputed facts is a legal determination; thus, [our] review is de novo.” State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014) (citation omitted). LEGAL ANALYSIS The United States Constitution provides, “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.”2 Amend. V, U.S. Const. Florida’s Constitution similarly affords, “[n]o person shall . . . be twice put in jeopardy for the same offense.” Art I, § 9, Fla. Const. As “it was designed originally to embody the protection of the common-law pleas of former jeopardy, the . . . 2 “[T]he double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitution heritage, and [thus] . . . appl[ies] to the States through the Fourteenth Amendment.” Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 (1969). 3 double jeopardy guarantee serves principally as a restraint on courts and prosecutors.” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977) (internal citation omitted). “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,” for “[t]he public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.’” Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829, 54 L. Ed. 2d 717 (1978) (citation omitted). Conversely, “[h]istorically, the pronouncement of sentence has never carried the finality that attaches to an acquittal.”3 United States v. DiFrancesco, 449 U.S. 117, 133-37, 101 S. Ct. 426, 435-37, 66 L. Ed. 2d 328 (1980) (“[D]ecisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal . . . The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.”); see also John A. Chatzky, Extending Double 3 Under English common law, “[t]he trial court’s increase of a sentence, so long as it took place during the same term of court, was permitted. This practice was not thought to violate any double jeopardy principle.” DiFrancesco, 449 U.S. at 133- 34, 101 S. Ct. at 435. As the “Double Jeopardy Clause was drafted with the common-law protections in mind,” such historical precedent is particularly relevant. Id. at 134, 101 S. Ct. at 436. 4 Jeopardy Protections to Sentencing, 20 Am. Crim. L. Rev. 127, 141 (1982) (“The [United States Supreme] Court [has] maintained that neither the history of sentencing practices, the pertinent rulings of the Court, nor considerations of double jeopardy policy support[] the proposition that a criminal sentence, once pronounced, is accorded a constitutional finality similar to that attached to an acquittal.”). Thus, “the application of the double jeopardy clause [to an increase in a sentence] turns on the extent and legitimacy of a defendant’s expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause.” Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (quoting United States v. Fogel, 829 F.2d 77, 87 (1987)). Consistent with these adages, a body of well-entrenched Florida jurisprudence provides that “[o]nce a sentence has been imposed and the person begins to serve the sentence,” Santiago v. State, 147 So. 3d 1057, 1059 (Fla. 3d DCA 2014) (quoting Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003)), “the later imposition of more onerous terms ‘violates the double jeopardy clause . . . when it disrupts the defendant’s legitimate expectations of finality.’” Dunbar, 89 So. 3d at 905 (citation omitted). Nonetheless, “it is clear that there are exceptions to the rule” that once a defendant begins to serve his sentence, a judge may not “resentence him to an increased term.” Goene v. State, 577 So. 2d 1306, 1308 (Fla. 1991). One such 5 instance is “orders, judgments[,] or decrees which are the product of fraud, deceit, or collusion.” Id. at 1309 (citation omitted). This is because “no legitimate expectation of finality in the sentence originally imposed [exists, thus] there is no double jeopardy prohibition against reimposition of a correct sentence.” Id. Another exception is implicated in circumstances in which, at the request of a convicted defendant, or at his instance or approval . . . the court has vacated or annulled its presently imposed sentence, and deferred the proposition of imposing a new sentence to a subsequent term of court, to which the case is continued . . . , the court may, at such subsequent term, impose a new sentence upon the original judgment of conviction, even though such new sentence is greater, or materially different in effect from that first imposed and thereafter vacated. Smith v. Brown, 135 Fla. 830, 834, 185 So. 732, 733 (1938) (citations omitted). Finally, if a “defendant’s violation of probation trigger[s] the resentencing, the defendant is not being sentenced for ‘precisely the same conduct,’ and double jeopardy concerns do not come into play.” 4 Roberts v. State, 611 So. 2d 58, 59 (Fla. 3d DCA 1990), approved by 644 So. 2d 81, 83 (Fla. 1994) (quoting State v. Payne, 404 So. 2d 1055, 1058 (Fla. 1981)). 4 A fourth exception exists where “the court ‘only set[s] aside what it had no authority to do, and substitute[s] directions required by the law to be done upon the conviction of the offender.” Bozza v. United States, 330 U.S. 160, 167, 67 S. Ct. 645, 649, 91 L. Ed. 818 (1947) (citation omitted). Otherwise stated, when “[t]he sentence as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense,” double jeopardy principles are not violated. Id. 6 Here, neither party disputes that, prior to the resentencing, Martinez had begun to serve his original sentence. Yet, without rendering any additional factual determinations, the lower tribunal vacated the original sentence and imposed a three- year jail sentence in its stead.5 As the latter sentence was harsher, in order to withstand our scrutiny, one of the foregoing exceptions must apply. The State asserts the original sentence was procured by fraud or deceit. However, the articulation by the lower court that “this whole issue . . . that’s going on with boot camp is not due to anything that [Martinez has] done purposefully,” precludes us from embracing this contention. Additionally, Martinez never sought to vacate or annul the imposed sentence. Rather, he requested to serve the originally- ordered term of days, without availing himself of the ordered mitigation. Finally, the more onerous sentence did not flow from a demonstrated violation of court- 5 The State’s alternative argument that Martinez violated the terms of the plea agreement fails to account for the fact that he was sentenced pursuant to a general plea of guilty. “A general plea is one where no agreement exists as to the sentence the defendant will receive.” Wright v. State, 268 So. 3d 208, 211 (Fla. 2d DCA 2019) (quoting Latos v. State, 39 So. 3d 511, 513 (Fla. 4th DCA 2010)). “An agreement to a specific sentence or a specific sentencing benefit is a key element distinguishing a bargained plea agreement from a general one.” Latos, 39 So. 3d at 513 (quoting Williamson v. State, 859 So. 2d 553, 554 (Fla. 1st DCA 2003)). The difference is significant, as a negotiated plea bargain “waive[s] double jeopardy objections to the sentences that formed part of that plea agreement.” Novaton v. State, 634 So. 2d 607, 608 (Fla. 1994). 7 ordered supervision. 6 Thus, the record is devoid of evidence that would support the application of a cognizable exception. Accordingly, the later-imposed sentence runs “afoul of double jeopardy principles,” and we are constrained to reverse and remand for further proceedings. Santiago, 147 So. 3d at 1059 (quoting Ashley, 850 So. 2d at 1267). Reversed and remanded. 6 DeJesus v. State, 848 So. 2d 1276, 1278 (Fla. 2d DCA 2003) (“Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”) (quoting Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999)). 8