Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ERNESTO MELENDEZ, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-933 June 3, 2022 Appeal from the Circuit Court for Hillsborough County; Melissa M. Polo, Judge. Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge. Ernesto Melendez challenges the sentence the circuit court imposed on resentencing in circuit court case number 05-17434 following his successful postconviction challenge based on Graham v. Florida, 560 U.S. 48 (2010), and Henry v. State, 175 So. 3d 675 (Fla. 2015). Because Melendez failed to preserve this issue by contemporaneous objection or raising it in a timely-filed Florida Rule of Criminal Procedure 3.170(l) motion, we must affirm. Melendez was convicted in several circuit court cases for multiple offenses stemming from a single criminal episode that occurred when he was sixteen years old. On October 7, 2008, Melendez appeared in court on case numbers 05-17895 and 05- 17434. At that time, the trial court noted that in a different case, number 05-17894, Melendez had already been convicted by a jury of attempted robbery with a firearm and aggravated assault with a deadly weapon but that he had not yet been sentenced in that case. The trial court stated: [I]f he wants to plead guilty open to the Court in the two pending cases I will give him 20 years in the Florida State Prison, followed by 20 years['] probation. .... I'm going to sentence him on the cases in front of me. If he wants to plead to these other charges that are pending I'll give him 20 years followed by 20 years['] probation on those to run concurrent and to run concurrent with whatever other sentence he may be 2 serving. It is my intention to sentence him on the case that he's been tried in front of me on to 20 years['] Florida State Prison consecutive to the other cases. So, there you go. .... My understanding is the other cases are already . . . pending . . . . [M]y intention on 05-17894 is to give him 20 years in the Florida State Prison consecutive to any other sentence he may be serving, okay? My – if he wants to enter a plea open to the Court today I will give him on . . . 05-17434, 20 years in the Florida State prison . . . to run concurrent followed by 20 years['] probation and that will run concurrent with any other sentence he's serving right now. Melendez accepted the offer and entered guilty pleas in cases 05-17895 and 05-17434, and the trial court sentenced him to fifteen years' prison in case 05-17895 and to twenty years' prison followed by twenty years' probation in case 05-17434, to run concurrently with one another and his previously imposed sentences. The court then sentenced Melendez in case 05-17894, in which he had been convicted after jury trial, to fifteen years' prison on count one and a consecutive five-year prison term on count two, both to be served consecutively to the sentences in his other five cases. 3 Melendez subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion in all six cases challenging his sentences—which amounted to twenty years consecutive to twenty years for an aggregate total of forty years in prison—as being in violation of Graham, 560 U.S. 48, and Henry, 175 So. 3d 675, because they did not include a provision for judicial review after a certain number of years as is required by section 921.1402, Florida Statutes (2014).1 The State conceded that Melendez was correct, and the postconviction court granted the motion and entered a new sentencing order. In that order, in case 05-17894—the case in which Melendez was convicted following jury trial—the circuit court again sentenced him to fifteen years' prison on count one and to five years' prison on count two, but this time the counts were to be served concurrently to one another and to the sentences in the other five cases. As to the two cases in which Melendez entered pleas, in case 05-17895, the trial court once again sentenced Melendez to fifteen years' prison to be served concurrently to his 1 Section 921.1402(2)(d) provides, "A juvenile offender sentenced to a term of 20 years or more under s. 775.082(3)(c) is entitled to a review of his or her sentence after 20 years." 4 other sentences. But in case 05-17434—the case at issue in this appeal—the court increased Melendez's sentence from twenty years' prison followed by twenty years' probation to forty years' prison followed by fifteen years' probation to be served concurrently with his other sentences. The court also ordered that Melendez is entitled to judicial review of his forty-year sentence in case 05- 17434 after twenty years. On appeal, Melendez maintains that the increase in the sentence in case 05-17434 is a violation of his original plea agreement because he entered his plea with the understanding that the court would sentence him in that case to twenty years' prison followed by twenty years' probation. In response, the State maintains that the plea Melendez entered in case 05-17434 was an open plea, not a negotiated one. The State, however, is incorrect. Despite any labels the State or the trial court may attempt to place on the plea, the transcript of the plea hearing reveals that the trial court clearly offered Melendez a specific sentence in exchange for his guilty plea. Such is a negotiated plea. See State v. Cosby, 313 So. 3d 903, 907-08 (Fla. 2d DCA 2021) ("[W]hile Cosby's plea to the charges was labeled an 5 open plea, it was entered only after the trial court stated it agreed to impose the requested downward departure sentence. Consequently, Cosby's plea was akin to a negotiated plea . . . ."); Salters v. State, 840 So. 2d 295, 295-96 (Fla. 2d DCA 2003) ("Salters' sentence was imposed pursuant to a negotiated plea. In 1996, following discussions with the trial court as to the sentence that would be imposed, Salters pleaded guilty to charges for delivery and possession of cocaine. . . . The record supports the trial court's conclusion that the guilty plea was negotiated and given in exchange for the agreed upon sentence." (emphasis added)). Nevertheless, Melendez has not preserved this issue for appellate review. "An issue concerning a sentence which exceeds the terms authorized in a plea agreement is not a sentencing error, but instead is a violation of the plea agreement which must be raised through a motion to withdraw plea." Williams v. State, 821 So. 2d 1267, 1268-69 (Fla. 2d DCA 2002) (emphasis added) (citing Gafford v. State, 783 So. 2d 1191, 1192 (Fla. 1st DCA 2001)); see also Fla. R. App. P. 9.140(b)(2)(A)(ii)(b) ("A defendant who pleads guilty or nolo contendere [without reserving the right to appeal a prior dispositive order] may . . . directly appeal . . . a violation of the 6 plea agreement, if preserved by a motion to withdraw plea." (emphasis added)). Here, Melendez acknowledges that he neither objected to the sentence when it was orally pronounced nor filed a motion to withdraw plea. As such, the issue is not preserved for appellate review. Furthermore, based on the wording of rule 9.140(b)(2)(A)(ii)(b), we conclude that the failure to raise the issue in a motion to withdraw plea is an absolute bar to review and that we cannot review the issue for fundamental error. Cf. State v. Dortch, 317 So. 3d 1074, 1082-83, 1084 (Fla. 2021) (interpreting identical language in subsection (c) of rule 9.140(b)(2)(A)(ii)—which allows a defendant who has entered a guilty or nolo contendere plea to raise on direct appeal the voluntariness of the plea but only "if preserved by a motion to withdraw plea"—and "hold[ing] that there is no fundamental-error exception to the preservation requirement" of that subsection). "Courts developed the fundamental error doctrine as a matter of grace, not because of any entitlement on the part of criminal defendants," and "an 'appellate court should exercise its discretion under the doctrine of fundamental error very guardedly.' " Id. at 1081 (quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 7 1970)). "[A]n appeal from a guilty plea should never be a substitute for a motion to withdraw a plea." Id. at 1082 (quoting Robinson v. State, 373 So. 2d 898, 902 (Fla. 1979)). Melendez attempts to get around this preservation problem by arguing on appeal that his counsel was ineffective on the face of the record for failing to object that his new sentence violated the plea agreement and failing to file a timely motion to withdraw plea after sentencing. Although this argument may have been valid at the time Melendez filed his initial brief, see Lowrey v. State, 22 So. 3d 745, 747 (Fla. 2d DCA 2009), during the pendency of this appeal, the Florida Supreme Court in Steiger v. State, 328 So. 3d 926, 932 (Fla. 2021), addressed claims of ineffective assistance raised on direct appeal and held: Based on the plain language of section 924.051(3), [Florida Statutes (2020),] an unpreserved error may only be raised and result in reversal on direct appeal where the error is fundamental. Because a showing of fundamental error is not required to prevail on a claim of ineffective assistance of trial counsel . . . such an unpreserved claim may not be raised or result in reversal on direct appeal. As such Melendez's claim of ineffective assistance of counsel apparent on the face of the record must fail. And because we 8 conclude that there is no fundamental-error exception to the preservation requirement in rule 9.140(b)(2)(A)(ii)(b), we must affirm Melendez's sentence. However, we do so without prejudice to any right Melendez might have to raise his claims of ineffectiveness in a Florida Rule of Criminal Procedure 3.850 motion. Affirmed. MORRIS, C.J., and LUCAS, J., Concur. Opinion subject to revision prior to official publication. 9