Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL JOHN PHILLIPS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-758 December 15, 2022 Appeal from the Circuit Court for Hardee County; Michael E. Raiden, Judge. Michael John Phillips, pro se. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. In this appeal of the sentence imposed on resentencing, Michael John Phillips argues that the trial court erred in increasing his unchallenged, previously imposed sentence on count two, which was one of two counts for DUI manslaughter. Because Phillips had a legitimate expectation of finality in the original sentence on this unchallenged count, we conclude that the court could not impose a longer sentence. We therefore reverse and remand for the court to reinstate the original fifteen-year sentence on this count. In 2017, a jury found Phillips guilty of two counts of DUI manslaughter (counts one and two), one count of DUI personal injury (count three), and four counts of DUI property damage (counts four through seven) after he caused a fatal accident while driving a truck tractor with methamphetamine in his system. Relying on an incorrectly calculated scoresheet, the trial court sentenced Phillips to life imprisonment on the first count of DUI manslaughter followed by a consecutive term of fifteen years' imprisonment (the statutory maximum) on the second count.1 See §§ 316.193(3)(c)3.a; 775.082(3)(d), Fla. Stat. (2020). The State has never contended that that fifteen-year sentence was illegal.2 Phillips filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, arguing that four "legal status" points had been improperly added to his sentencing guidelines scoresheet; that but for these points, he would have been ineligible for a life sentence; and that in failing to object, his attorney had rendered ineffective assistance. The 1 The trial court also sentenced Phillips to six months' imprisonment on the DUI personal injury count and to time served on the four counts of DUI property damage. 2 Even if the trial court erred by imposing on count two a sentence below the lowest permissible sentence established by the Criminal Punishment Code, a sentence below the lowest permissible sentence is not the same as an illegal sentence. See, e.g., § 924.07(1)(e), (i), Fla. Stat. (2021) (separately providing that the State may appeal an illegal sentence and "[a] sentence imposed below the lowest permissible sentence"); State v. Akins, 69 So. 3d 261, 268–69 (Fla. 2011) ("An illegal sentence is 'one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.' " (quoting Williams v. State, 957 So. 2d 600, 602 (Fla. 2007))). Indeed, the dissent acknowledges that but for the incorrect scoresheet, the original sentence was "proper" and stops short of declaring that sentence "illegal" even under the corrected scoresheet. 2 postconviction court agreed and concluded that Phillips would have to be resentenced.3 At the resentencing hearing, the court resentenced Phillips on count one to 20.775 years' imprisonment. The court then increased Phillips's sentence on count two from a consecutive term of 15 years' imprisonment to a consecutive term of 20.775 years' imprisonment. The court also increased his sentences on the five remaining counts to one year of imprisonment, with the DUI personal injury sentence to run consecutively to the four DUI property damage sentences, which were to run concurrently with each other. Thereafter, Phillips filed the underlying rule 3.800(b)(2) motion, arguing that the court had lacked authority to modify his sentences on counts two through seven. The court granted the motion with respect to counts three through seven on the ground that those sentences had already been completely served but denied the motion with respect to count two, concluding that as a consecutive sentence, the sentence on that count was "intertwined" with the sentence on count one and thus should be increased to ensure that the overall sentence was consistent with the original sentencing court's intent. This appeal followed. Whether a sentence that has been imposed may later be increased without running afoul of double jeopardy principles turns on whether the defendant had a legitimate expectation of finality in the sentence. See Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) ("[T]he later imposition of 3 Although the record in this rule 3.800(b)(2) proceeding does not include Phillips's rule 3.850 motion, it does include, as exhibits, the postconviction court's orders (the first setting an evidentiary hearing, the second granting partial relief) on that motion. Those orders establish that Phillips's challenge to the scoresheet was directed solely to his life sentence, which had been imposed only on count one. 3 [a] more onerous [sentence] 'violates the double jeopardy clause only when it disrupts the defendant's legitimate expectations of finality.' " (quoting United States v. Young, 953 F.2d 1288, 1291 n.3 (11th Cir. 1992))). As a general rule, this legitimate expectation of finality attaches when the sentence is orally pronounced. See Troupe v. Rowe, 283 So. 2d 857, 860 (Fla. 1973) (concluding that jeopardy had attached to the trial court's pronouncement of a thirty-day sentence such that after a recess in the proceedings and the arrival of a more aggressive assistant state attorney, the court could not increase the defendant's sentence); Obara v. State, 958 So. 2d 1019, 1021 (Fla. 5th DCA 2007) (reversing a sentence imposed after the defendant had been called back into the courtroom less than one hour after the imposition of his original sentence and rejecting the State's argument that jeopardy had not attached because the defendant had not yet begun to serve his sentence). But see Curtis v. State, 789 So. 2d 394, 395–96 (Fla. 4th DCA 2001) (holding that jeopardy had not attached because the record did not show that the defendant had reached his place of incarceration when trial court recalled his case and increased his initial sentence). A defendant has no legitimate expectation in the finality of a sentence that has been appealed or otherwise challenged. See, e.g., Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002) ("[D]ouble jeopardy is not implicated in the context of a resentencing following an appeal of a sentencing issue."); Harris v. State, 645 So. 2d 386, 388 (Fla. 1994) (concluding that the defendant "had no expectation of finality regarding his sentence where he opened the door to the district court's appellate jurisdiction on an issue of law that was clarified while his case was still pending"); James v. State, 845 So. 2d 238, 240 (Fla. 1st DCA 2003) ("[T]here is no legitimate expectation of finality in a sentence a defendant 4 seeks to overturn."); State v. Rojas, 346 So. 3d 1236, 1237 (Fla. 3d DCA 2022) ("[A] defendant does not have an expectation of finality that triggers double jeopardy when the government is pursuing a lawful appeal of a sentence.").4 That said, a defendant who has been sentenced on multiple counts is free to "pick and choose which sentences to challenge in a multicount judgment . . . without affecting the finality of the other sentences." Delemos v. State, 969 So. 2d 544, 549 (Fla. 2d DCA 2007). Unlike federal law, Florida has rejected the notion that vacatur of one sentence can reopen the entire "sentencing package" to effectuate the original sentencing court's intent. See Fasenmyer v. State, 457 So. 2d 1361, 1366 (Fla. 1984) (noting that "[e]ach separate offense must carry a discrete sentence" and "conclud[ing] that the concept of aggregate sentencing on interdependent offenses as it relates to a trial judge's desire to effect the original sentencing plan does not justify modification, on remand after appeal, of sentences on convictions not challenged on appeal or disturbed by the appellate court"); Pitts v. State, 935 So. 2d 634, 635 (Fla. 2d DCA 2006) (holding that after granting the defendant's motion to correct an illegal sentence, the court was not "authorize[d] . . . to modify a legal sentence imposed on another count" in order "[t]o maintain the original total prison time"); Mock v. State, 249 So. 3d 742, 746 (Fla. 1st DCA 2018) (rejecting argument that "assumes that the trial court had the ability to hold tight to a sentencing scheme even when only one sentence is challenged and no sentencing scheme was readily apparent" and recognizing that "[u]nlike some federal courts, Florida courts have not adopted this procedure"); Hughes v. State, 177 4 A defendant also does not have any legitimate expectation in the finality of a sentence resulting from "fraud, deceit, or collusion." Goene v. State, 577 So. 2d 1306, 1309 (Fla. 1991). The State does not argue and nothing in the record suggests that this exception applies here. 5 So. 3d 689, 693 (Fla. 5th DCA 2015) (en banc) ("In our view, when the court is not effectuating the terms of a plea bargain, Fasenmyer precludes the restructuring of a sentence imposed for counts not successfully challenged on appeal."). But see Cazares v. State, 127 So. 3d 828, 830 (Fla. 2d DCA 2013) (Altenbernd, J., concurring) (opining that the federal "package approach" is the "better approach" and that "[t]he Double Jeopardy Clause of the U.S. Constitution should not prevent a trial court from readjusting the sentences imposed at a single sentencing hearing to impose lawful sentences consistent with the overall aggregate sentencing package intended by the pronouncement at that sentencing hearing"). Reynolds v. State, 116 So. 3d 558, 560 (Fla. 3d DCA 2013), is particularly instructive here. In that case, the Third District Court of Appeal approved in toto the trial judge's order rejecting the defendant's request to also resentence him on unchallenged counts two and three when resentencing him on count one, the life sentence on which had been vacated as unconstitutional. The trial judge observed: The legality of the sentences on counts two and three in this case is important because it distinguishes this case from that line of cases where a trial court has been allowed to "restructure" sentences on various counts or cases so as to achieve an "original sentencing intent." The latter situation only applies, however, where the sentences to be restructured have been successfully challenged at the trial or appellate court level. Id. at 560. Moreover, relying on Fasenmyer, 457 So. 2d at 1362, 1366, the trial judge in Reynolds went on to explicitly reject any argument that an unchallenged sentence could be modified if it had been ordered to run 6 consecutively to the vacated sentence, as was Phillips's sentence on count two: In addition to the apparently overwhelming authority in Florida which indicates that I am without power to change legal, unchallenged sentences, there is nothing in the record . . . to indicate that the then trial judge imposed the . . . sentences on counts two and three "in consideration of" the life sentence or that they were "intertwined" with it. As I have already noted, the judge ordered each of these sentences to run concurrent with each other. So, they are not "intertwined" in the sense that one sentence was to run consecutive to another. . . . [But] [a]ssuming for the sake of this argument that the record in this case supports the idea that the sentences in this case were part of a "package," existing precedent appears to foreclose the possibility that this could be the basis for modifying legal, undisturbed sentences. . . . As a result, even if we had in this case "aggregate sentencing on interdependent offenses" . . . , under Fasenmyer[, 457 So. 2d at 1366,] that still would not provide a basis for modifying lawful sentences on convictions. Reynolds, 116 So. 3d at 561–62 (emphasis added). We read Fasenmyer the same way as the trial judge in Reynolds and, like the Third District, conclude that we could not have said it better ourselves. But that said, our dissenting colleague raises important questions, not the least of which is whether our jurisprudence has expanded double jeopardy protections to a degree beyond what is constitutionally required. Those questions warrant thorough consideration and discussion and perhaps, ultimately, an approach more consistent with that employed in the federal system. In the meantime, however, we are bound by that jurisprudence as it has developed and are constrained to apply it here to conclude that Phillips is entitled to relief: he challenged the imposition of a life 7 sentence on count one, and neither he nor the State appealed or otherwise challenged his fifteen-year sentence on count two. Accordingly, Phillips's legitimate expectation of finality in the sentence on count two remained undisturbed, and the court erred in resentencing him to a longer term on it. Sentence affirmed in part and reversed in part; remanded for reinstatement of original sentence on count two. KHOUZAM, J., Concurs. STARGEL, J., Concurs in part and dissents in part with opinion. STARGEL, Judge, Concurring in part and dissenting in part. Our jurisprudence has led us down a path which interprets Florida's double jeopardy clause more broadly than federal law, and the result in this case conflicts with a statutorily mandated minimum sentence. Under these facts, the effect of the majority's opinion results in a conflict with the statutorily mandated lowest permissible sentence for count two despite the fact there is no double jeopardy problem. Thus, while I concur with the decision to affirm Phillips' sentence on count one, because Phillips had no legitimate expectation of finality in an invalid sentence, and because the sentence in count two was part of an aggregate sentencing package, I dissent from the decision to reverse as to count two. I. "The most familiar concept of the term 'double jeopardy' is that the Constitution prohibits subjecting a person to multiple prosecutions, 8 convictions, and punishments for the same criminal offense." Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009). "The constitutional protection against double jeopardy is found in both article I, section 9, of the Florida Constitution and the Fifth Amendment to the United States Constitution, which contain double jeopardy clauses." Id. "[T]he application of the [D]ouble [J]eopardy [C]lause . . . turns on the extent and legitimacy of a defendant's expectation of finality in that sentence." Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (quoting United States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987)). As the majority correctly establishes, a defendant's legitimate expectation of finality in an original sentence on an unchallenged count is grounded in decades of jurisprudence by this court and the Florida Supreme Court. See, e.g., Ashley v. State, 850 So. 2d 1265, 1267–68 (Fla. 2003); Fasenmyer v. State, 457 So. 2d 1361, 1366 (Fla. 1984); Delemos v. State, 969 So. 2d 544, 549 (Fla. 2d DCA 2007); Pitts v. State, 935 So. 2d 634, 635 (Fla. 2d DCA 2006). However, if "there is some circumstance which undermines the legitimacy of that expectation, then a court may permissibly increase the sentence." Dunbar, 89 So. 3d at 905 (quoting Fogel, 829 F.2d at 87). The facts of this case make it distinguishable from Ashley and its progeny, and like the defendant in Dunbar, Phillips had no expectation of finality in an invalid sentence. See id. at 906. In the case before us, the corrected scoresheet reflects that the lowest permissible prison sentence is 249.3 months, or 20.775 years, for each felony count, which in count two is 5.775 years longer than the original, statutory maximum sentence of fifteen years. Based on the language of section 921.0024(2), Florida Statutes (2012), "[i]f the lowest permissible sentence under the code exceeds the statutory maximum 9 sentence as provided in [section] 775.082[, Florida Statutes (2012)], the sentence required by the code must be imposed." "[T]he [lowest permissible sentence] is an individual minimum sentence where there are multiple convictions subject to sentencing on a single scoresheet." State v. Gabriel, 314 So. 3d 1243, 1246 (Fla. 2021). In other words, it "applies to each felony at sentencing for which the [lowest permissible sentence] exceeds that felony's statutory maximum sentence, regardless of whether the felony is the primary or an additional offense." Champagne v. State, 269 So. 3d 629, 636 (Fla. 2d DCA 2019) (emphasis added). "A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to [section] 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure." § 921.0026(1).5 Recognizing this, the resentencing court imposed the lowest permissible sentence for each of the felonies in counts one and two while specifically finding that there were no valid reasons for a downward departure. According to the record before us, the source of the problem before the original sentencing court was the inclusion of four erroneous sentencing points on the scoresheet which made Phillips appear to qualify for a life sentence. Once corrected, he was only 2.6 points away from qualifying for a life sentence on the felony counts. In its efforts to reconfigure the sentencing plan to satisfy the statutory requirements as well as the intention of the original sentencing court, the resentencing court imposed twenty years, nine months, and nine days—the lowest permissible sentence—for the felonies in counts one and two and ordered 5 The list of mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified is set forth in section 921.0026(2)(a)–(n). 10 count two to run consecutively to count one.6 This resulted in an additional five years, nine months, and nine days on count two. Much like the situation in Bozza v. United States, 330 U.S. 160, 167 (1947), the court "only set aside what it had no authority to do and substitute[d] directions required by the law to be done upon the conviction of the offender." It did not twice put petitioner in jeopardy for the same offense. The sentence as corrected imposes a valid punishment for an offense instead of an invalid punishment for that offense. Id. (alteration in original) (footnote omitted) (quoting In re Bonner, 151 U.S. 242, 260 (1894)). The effect of the majority's decision will allow Phillips to receive a sentence that is five years, nine months, and nine days below the lowest permissible sentence under the guidelines even though the record reflects that none of the statutory factors for departure are present. Further, the sentences in counts one and two were inextricably intertwined such that resentencing on one count affected the overall sentencing package. The resentencing court recognized this fact: The scoresheet error Defendant raised in Count [one] affected the original sentence as to Count [two]. Accordingly, based upon the corrected scoresheet, a resentencing as to Count [two] was necessary. See Senterfitt v. State, 515 So. 2d 411 (Fla. 1st DCA 1987). This is so because the original sentence 6 Because the lowest permissible sentence exceeds the standard maximum sentence for this second-degree felony, the sentencing judge was constrained by the lowest permissible sentence, which was also the new maximum sentence once the scoresheet was corrected. See Champagne, 269 So. 3d at 637 ("[U]nder the [Criminal Punishment Code] there is not a single sentencing range; rather, each offense has its own statutory maximum sentence such that the range may differ for each offense. But where the [lowest permissible sentence] exceeds the offense's statutory maximum sentence, there is no range; the [lowest permissible sentence] must be imposed." (citing Butler v. State, 838 So. 2d 554, 556 (Fla. 2003))). 11 in Count [two] was ordered to run consecutively to Count [one], thus the sentences imposed were intertwined such that resentencing in Count [one] required resentencing in Count [two].[7] Id. at 413; see also Reynolds v. State, 116 So. 3d 558, 561 (Fla. 3d DCA 2013). Once the life sentence was vacated, Defendant was sentenced in Counts [one] and [two] in accordance with the guidelines, even though the total sentence exceeded the statutory maximum. The sentence imposed in Count [two] is consistent therewith. As demonstrated above, the sentencing error in this case was solely attributable to the incorrect scoresheet and resulted in the imposition of an invalid sentence on count two. This differs from the "procedural quagmire" described by this court in the violation of probation sentence in Cazares v. State, 127 So. 3d 828, 829 (Fla 2d DCA 2013), the decision to modify a legal sentence on an unchallenged count in Pitts, 935 So. 2d at 635, or the failure to properly announce the status of a habitual violent felony offender in Ashley, 850 So. 2d at 1268. The record reflects that the original sentencing court simply did not have correct information when imposing sentences on every count because of the erroneous scoresheet, and once corrected, the resentencing court was faced with a dilemma: (1) follow the path of our double jeopardy jurisprudence and render an invalid sentence on count two or (2) comply with the statutory required minimum sentencing criteria while following the objective of the original sentencing package. In the end, based on the correct scoresheet, Phillips' original sentence on count two, which fell short of the lowest permissible sentence, was invalid. See § 921.0024(2). And because Phillips had no legitimate expectation of finality in a sentence the trial court had no 7 The original sentencing court ordered the sentence on count one to run consecutively to the sentence on count two. 12 discretion to impose, no double jeopardy violation occurred in resentencing. See Dunbar, 89 So. 3d at 906. Therefore, I would affirm Phillips' sentence on count two. II. As the majority illustrates, our jurisprudence has resulted in a system which allows a defendant to cherry-pick which counts to appeal without affecting other sentences that were part of a multicount sentencing package. While a defendant should certainly be entitled to rehearing or an appeal to correct sentencing anomalies, they should not be able to pick and choose which sentences to keep and which ones to challenge when the entire sentencing package—i.e., sentences that are inherently interrelated and interconnected—was based upon an erroneous scoresheet. I agree with Judge Altenbernd when he recognized almost a decade ago in his concurring opinion in Cazares that "[t]he Double Jeopardy Clause of the U.S. Constitution should not prevent a trial court from readjusting the sentences imposed at a single sentencing hearing to impose lawful sentences consistent with the overall aggregate sentencing package intended by the pronouncement at that sentencing hearing." 127 So. 3d at 830–31 (Altenbernd, J., concurring) (footnote omitted); see also Ashley, 850 So. 2d at 1271 (Harding, J., dissenting) ("[T]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." (quoting Ashley v. State, 772 So. 2d 42, 43 (Fla. 1st DCA 2000), quashed by Ashley, 850 So. 2d 1265)). Indeed, federal courts have held that this concept does not run afoul of double jeopardy principles. See Pepper v. United States, 562 U.S. 476, 507 (2011) (explaining that because "[a] criminal sentence is a 13 package of sanctions that the district court utilizes to effectuate its sentencing intent," which "may be undermined by altering one portion of the calculus, an appellate court when reversing one part of a defendant's sentence may vacate the entire sentence so that, on remand, the trial court can reconfigure the sentencing plan to satisfy the sentencing factors in [the statute]" (cleaned up) (first quoting United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996); then quoting United States v. White, 406 F.3d 827, 832 (7th Cir. 2005); and then quoting Greenlaw v. United States, 554 U.S. 237, 253 (2008))); United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir. 2010) ("[W]e have adopted a 'holistic approach' to resentencing, treating a criminal sentence as a 'package of sanctions' that may be fully revisited upon resentencing." (first quoting Stinson, 97 F.3d at 469; and then quoting United States v. Yost, 185 F.3d 1178, 1181 (11th Cir. 1999))); United States v. Mixon, 115 F.3d 900, 903 (11th Cir. 1997) ("If a multicount sentence is a package—and we think it is—then severing part of the total sentence usually will unbundle it." (quoting United States v. Smith, 103 F.3d 531, 534 (7th Cir. 1996))). Furthermore, since the scope of the double jeopardy clause in the Florida Constitution is the same as the Double Jeopardy Clause in the U.S. Constitution, Hall v. State, 823 So. 2d 757, 761 (Fla. 2002), abrogated on other grounds as recognized by Norvil v. State, 191 So. 3d 406, 409 (Fla. 2016); State v. Brown, 310 So. 3d 1046, 1048 (Fla. 5th DCA 2020), Florida law should grant this same degree of latitude for trial courts to "unbundle" a sentencing package in order to impose appropriate sentences consistent with the intent of the original sentencing court and the statutory guidelines for minimum and maximum sentences. 14 The double jeopardy clauses of the U.S. Constitution and Florida Constitution should not be read to prevent a trial court from unbundling the entire sentencing package and reconfiguring a sentencing plan for each case and each count that was before the court at the time an erroneous scoresheet was used. Therefore, I would distinguish, at a minimum, cases where the only issues involved are based on administrative or scrivener's errors (such as an erroneous scoresheet) as an exception to the general rule that "[o]nce a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles." See Ashley, 850 So. 2d at 1267. As Judge Altenbernd opined in his dissent in Gardner v. State, 30 So. 3d 629 (Fla. 2d DCA 2010), disapproved of by Dunbar, 89 So. 3d 901 (holding that a defendant did not have a legitimate expectation of finality in a sentence that the trial court had no discretion to impose, and thus the trial court's correction of that sentence did not violate double jeopardy), So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. . . . A defendant has a right to a legal sentence. . . . Somehow, Florida's technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal sentences, but to sentences that are often more like half jeopardy. Gardner, 30 So. 3d at 634–35 (Altenbernd, J., dissenting). 15 III. In summary, while a defendant is entitled to an expectation of finality of a legal sentence, the State and its citizens are equally entitled to a sentencing system where cases involving multiple counts of conviction that are sentenced together as a sentencing package are permitted to continue to be considered together upon resentencing when errors are discovered on a scoresheet. Because that is not what the majority's opinion will allow, I respectfully dissent from the court's decision as to count two. Opinion subject to revision prior to official publication. 16