Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Appellant, v. KEVRICK M. HALL, JR., Appellee. No. 2D21-3197 November 30, 2022 Appeal from the Circuit Court for Polk County; Larry Helms, Judge. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee. LaROSE, Judge. The State appeals the trial court's mitigated sentences imposed on Kevrick M. Hall, Jr. These sentences are illegal because the trial court lacked authority to modify the negotiated disposition to which Mr. Hall and the State agreed. We have jurisdiction, see § 924.07(1)(e), Fla. Stat. (2021); Fla. R. App. P. 9.140(c)(1)(M), and reverse. Background The State charged Mr. Hall with several offenses stemming from his participation in the armed robbery of a restaurant. The State offered him a deal: instead of facing life in prison, he could plead to reduced charges, testify truthfully against his codefendant, and receive a term of five years' imprisonment. Mr. Hall accepted and pleaded no contest to lesser offenses. The trial court continued sentencing until after the conclusion of the codefendant's trial. As agreed, Mr. Hall testified against his codefendant. The jury acquitted the codefendant. Thereafter, the trial court sentenced Mr. Hall to five years' imprisonment. Mr. Hall filed a "Motion to Mitigate or Modify Sentence," pursuant to Florida Rule of Criminal Procedure 3.800(c). He claimed that "the sentence imposed was too harsh and severe" considering his codefendant's acquittal. He also touted his "relatively minor participa[tion] in the [armed robbery]" as well as his cooperation with the State. Basically, he argued that equity and fairness warranted lower sentences. 2 The trial court granted the motion, mitigating Mr. Hall's sentences to time served. The State moved for rehearing. The trial court dismissed the motion. It concluded that "the State was not entitled to a rehearing because it had no right to appeal the [trial court's discretionary mitigation] decision." Analysis At the outset, we assess our jurisdiction. We are mindful "that the State's right to appeal in criminal cases 'should be construed narrowly.' " State v. Gaines, 770 So. 2d 1221, 1227 n.8 (Fla. 2000) (quoting State v. Jones, 488 So. 2d 527, 528 (Fla. 1986)). That means that "the State's right to appeal an adverse ruling is a limited one that is strictly governed by statute, rule and overriding constitutional principles, such as the constitution's protection against double jeopardy." Id. The State may appeal an illegal sentence. § 924.07(1)(e) ("The state may appeal from . . . [t]he sentence, on the ground that it is illegal."); Fla. R. App. P. 9.140(c)(1)(M) (permitting the State to appeal an order "imposing an unlawful or illegal sentence"). An "illegal sentence" is "one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws 3 could impose under any set of factual circumstances." Plott v. State, 148 So. 3d 90, 93 (Fla. 2014) (quoting Williams v. State, 957 So. 2d 600, 602 (Fla. 2007)). We have held that a trial court may not unilaterally modify a previously imposed negotiated sentence between a defendant and the State.1 See McCormick v. State, 961 So. 2d 1099, 1100 n.1 (Fla. 2d DCA 2007) ("We assume that McCormick's plea was open. If it was a bargained plea, McCormick would not be able to use a rule 3.800(c) motion to avoid the burden he agreed to."); State v. Brooks, 890 So. 2d 503, 505 (Fla. 2d DCA 2005) ("As part of the negotiated plea, Brooks and the State agreed to a reduced charge and to specific downward departure sentences in exchange for Brooks' no contest plea. Based on the circumstances of this case . . . we conclude . . . that 'the trial court erred in reducing the incarcerative portion of the sentence at the mitigation hearing where said 1 At least, the trial court may not modify a defendant's negotiated sentence to a term less than that provided for in the negotiated disposition without first giving the State the opportunity to void the plea agreement. See State v. Swett, 772 So. 2d 48, 51 (Fla. 5th DCA 2000). 4 sentence was imposed as part of a negotiated plea.' " (quoting State v. Swett, 772 So. 2d 48, 52 (Fla. 5th DCA 2000))). Other courts have reached the same conclusion. See, e.g., Reid v. State, 224 So. 3d 306, 307 n.1 (Fla. 3d DCA 2017) ("[A]n order granting a [r]ule 3.800(c) motion that reduces a sentence imposed pursuant to a negotiated plea constitutes an appealable order."); State v. Howell, 59 So. 3d 301, 302 (Fla. 5th DCA 2011) ("[T]he trial court lacked the discretion to modify the sentence previously imposed pursuant to the plea agreement [between the State and the defendant]."); State v. Gutierrez, 10 So. 3d 158, 159 (Fla. 3d DCA 2009) (reversing and remanding for resentencing under the terms of the negotiated plea agreement because "the trial court . . . did not have discretion over defendant's sentence and . . . should have denied defendant's motion to mitigate"); Arango v. State, 891 So. 2d 1195, 1196 (Fla. 3d DCA 2005) (concluding that the trial court's denial of a motion for extension of time to file a motion to mitigate was proper because the motion to mitigate would have been futile as the defendant's plea agreement involved a specific negotiated sentence and did not give the trial court any discretion over the sentence length); Swett, 772 So. 2d at 52. 5 Because the trial court could not undo Mr. Hall's negotiated sentences, the mitigated sentences are illegal.2 In other words, the trial court could not unilaterally modify a contract to which it was not a party. After all, "[a] plea agreement is a contract and the rules of contract law are applicable to plea agreements." Johnson v. State, 225 So. 3d 930, 932 (Fla. 3d DCA 2017) (quoting Garcia v. State, 722 So. 2d 905, 907 (Fla. 3d DCA 1998)). And, " '[i]t is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties,' or, in the guise of interpretation, relieve a contracting party from the consequences of a bad 2 Mr. Hall contends that we lack jurisdiction because the State filed an untimely notice of appeal. See Fla. R. App. P. 9.110(b); e.g., Franchi v. Fla. Dep't of Com., 375 So. 2d 1154, 1155 (Fla. 4th DCA 1979) ("Failing to file any notice within the 30 day period constitutes an irremediable jurisdictional defect."). However, under Florida Rule of Criminal Procedure 3.192, "[w]hen an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or section[] 924.07[,] . . . the state may file a motion for rehearing within 10 days of an order subject to appellate review." Mr. Hall's mitigated sentences were illegal. Thus, the State's timely filed rehearing motion was authorized and tolled rendition of Mr. Hall's mitigated sentences. See Fla. R. App. P. 9.020(h)(1)(B) (listing a timely and authorized rehearing motion as among those motions tolling rendition of an otherwise appealable order); (f) (defining an "Order" as "[a] decision, order, judgment, decree, or rule of a lower Tribunal"). Consequently, the State's notice of appeal, filed on the same day the trial court dismissed its rehearing motion, was timely. 6 bargain."3 Famiglio v. Famiglio, 279 So. 3d 736, 740 (Fla. 2d DCA 2019) (alteration in original) (first quoting Barakat v. Broward Cnty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000); and then citing Prestige Valet, Inc. v. Mendel, 14 So. 3d 282, 283 (Fla. 2d DCA 2009)).4 And, to be certain, Mr. Hall offers us no on-point authority to support the trial court's action.5 Cf. Wesner v. State, 843 So. 2d 3 We express no opinion on whether Mr. Hall's negotiated plea was a "bad bargain." 4 Mr. Hall argues that we lack jurisdiction because the trial court dismissed (as opposed to denied) the State's rehearing motion. See Fla. R. Crim. P. 3.192 ("A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing." (emphasis added)). Mr. Hall's argument is misplaced. We always "have jurisdiction to determine the issue of [our] own jurisdiction." Lackner v. Cent. Fla. Invs., Inc., 14 So. 3d 1050, 1055 (Fla. 5th DCA 2009). Moreover, because Mr. Hall's mitigated sentences were illegal, the State's rehearing motion was well-taken and should have been granted. 5 To the extent that Mr. Hall maintains that our review is stymied by LaFave v. State, 149 So. 3d 662 (Fla. 2014), we find that case readily distinguishable. There, the State petitioned for a writ of certiorari to quash the trial court's order terminating Ms. LaFave's probation early, contrary to the terms of the plea agreement she had negotiated with the State. We granted the petition. State v. LaFave, 113 So. 3d 31, 33 (Fla. 2d DCA 2012). However, the supreme court quashed our decision, concluding that we lacked jurisdiction to grant the State's petition for writ of certiorari because the trial court's order was a final order for which the State had no statutory right to appeal. LaFave, 149 So. 3d at 7 1039, 1040 (Fla. 2d DCA 2003) (issuing writ of certiorari upon concluding that the trial court departed from the essential requirements of law where it erroneously interpreted the language of section 948.03(5)(a)(5), Florida Statutes (2000), as eliminating the trial court's discretion to terminate probation early). Moreover, were we to affirm the trial court's actions, the ramifications could be profound. In Swett, the Fifth District observed that "the plea was part of a deal whereby the prosecutor reduced the murder charge to second degree murder in exchange for the plea. The sentence was part of a quid pro quo, and the defendant cannot accept the benefit of the bargain without accepting its burden." 772 So. 2d at 52. Permitting a defendant to use a rule 3.800(c) motion to evade a negotiated plea "would 670 ("[T]he State may only use a writ of certiorari to review a non- final order, or to review a final order of a circuit court acting in its review capacity."). In contrast, here, we have new (albeit illegal time-served) sentences, explicitly enumerated as a basis for our plenary review. See § 924.07(1)(e); Fla. R. App. P. 9.030(b)(1)(A); 9.140(c)(1)(M); cf. State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986) (observing that under rule 9.140 "[w]hen a trial court determines that probation should not be revoked, and thus imposes no sentence, the state has no remedy either by direct appeal or by certiorari" (emphasis added)). 8 discourage the state from entering into plea bargains in the future." Id. Conclusion We reverse Mr. Hall's mitigated sentences and remand for the trial court to reinstate the parties' original, negotiated sentences of five-years' imprisonment. Reversed and remanded. SILBERMAN and VILLANTI, JJ., Concur. Opinion subject to revision prior to official publication. 9