means that your time is drawing to a close so begin to wrap up if we take you beyond the light then don't worry about it just keep talking to us as long as we and with that will begin with our first case glenn jones different meyer standing is did appoint the court to not only the text of thirty eight hundred day but two recent decisions flown from florida supreme court the person ninety eight decision hopping the state which held that when it three hundred motion can be used for double jeopardy when it's just looking at documents in the record were never met your hearing is not needed and second more the scent yes the the language in hopping doesn't refer to sons but then when you read plot the state of a twenty fourteen case it expressively a rejected that thirty eight hundred motions were for double jeopardy but only four and then the plot also stated that the legal as a term is used in thirty eight hundred a means contrary to statute or the constitution so i would submit that based upon the florida supreme court's decision in plot three hundred a is not just limited to a double jeopardy set it can be brought all the average of jeopardy constitution he does not draw a distinction between the states that you just may judge jordan and giving the proceeds litigant the benefit of the doubt which i believe this court should and i believe the x and case law applies i think that a fair reading of the moving papers below and in the record demonstrate that my client can bring both a double jeopardy challenge to the sentences and to the underlying convictions themselves however i believe kant of the court it appears to me that the florida supreme court's case law and view under thirty eight hundred appears that's found in the appendix does reference the august twenty third two thousand and twelve order if and this is an assumption on my part if the case was over for the p c r court the p c r court based upon the august twenty third should have denied any subsequent for lack of jurisdiction that the case was over it was it was over it was should have been if it was over and on august twenty third it was over and in august twenty third and the time period to file a notice of appeal based on the august twenty third order assuming that it was final would have run so the fact that you have a marriage based order in september i think this is just might my recollection in essence starts a time again for to take an appeal so i don't think that if you want to piggyback upon the fact that there is a  prior order i don't think that's dispositive of this case and i also says a submit that it was never argued by the state nor has it ever been given as a grounds for  berger and it's progeny or that as a matter of proof there was a double jeopardy violation the nation of the two again and i know that mr jones proceeded pro se in the in the district court and some trying to make sense as judge rosenbaum was of some procedural issue of the merits issue and i want to get a handle on what you believe the double jeopardy theory is for his to ok so i think this of the charging document and the verdict form shouldn't have any type especially in iraq atory where the charging document says on one or more occasions and so as a result we have a duplicity problem with in count one the one of those two counts was gone and that the other one survived this this court affirmed both count two and count two three being vacated in toto there are other circuits that have done the opposite and said if there's a double jeopardy problem either the city or multiplicity first count stands all the other counts go away because it's only the conviction on the later counts the double jeopardy problem you think those are not well reason well i would say that in the context of this case the the core probably does need to reach that because my client was maxed on each count he was given fifteen years on each count with a fifteen year term of probation i thought term of fifteen years afterwards but perhaps think each each sentence and you may be right that each sentence was fifteen in prison followed by fifteen yes because because of the sexual offender probation but it but assuming for for the sake of argument that that i'm wrong the having of having given that you know each of you all have to have sat at the trial level i think we all know that the entirety of a case informs a trial judge's sentencing decision so that when you have multiple counts with each additional count bena forms the sentence sensing course decision so it is in my view entirely plausible that  count two and allow the conviction of count want to stand is for then to have a reset and seeing on count one because the trial judge may have determined that he would have given a lower sentence and this is further compounded by the fact that under the floor rules of current procedure in florida guidelines each additional count is scored and the each additional count is scored so it's somewhat similar to the federal sentencing guidelines and that heard but the trial just said well you only have one count here i don't think fifteen years is appropriate maybe twelve years is appropriate maybe ten years is appropriate and in this case given the amount of time that my client is already served you know this is not of may please the court my name is alba martin and i represent the state of florida and the department of corrections in this case i will address a few of the court's concerns regarding a thirty eight hundred a motion and i'll read exactly what  the rule says a court may at any time correct an illegal sentence imposed by it or an incorrect calculation that's it the sentence in this case the defendant is attacking his convictions and his  and by the next part his sentences but it is truly an attack on his every if you read his if you read his thirty eight hundred a motion in the post conviction court he attacks both separate he talks about his convictions and he talks about his sentences right and when but the problem is is that florida courts have already construed that if there's a question about have done that it probably would have been right to do that it didn't do that what it said was i am converting your challenge although you make a double jeopardy claim i want to construe it as a sufficiency claim that's that's incorrect well no i disagree that you can't you can't turn around someone's he says double jeopardy i think on eighty percent of the pages of his pro se filing whether he's right or wrong on double jeopardy that's the claim he's making and the state post conviction court is saying not really going to consider a double jeopardy claim i'm going to i'm going to i think you're really making a sufficiency claim and that's not a bar well yes it is because trial court because a post conviction court found that you don't just look at the fact that he said double jeopardy he also claims that it's because there's a single victim and he's asking the court to make a factual determination problem is regardless of what else the district whatever regardless of what else the trial court addressed yes did not address his double jeopardy that that's the no because i've i believe the state court found an independent adequate procedural bar once the bar a where the court of dresses double jeopardy now and it doesn't say and then in that case somewhere in that opinion where it says the reason we're not going to address any kind of attacks on the c a single victim supported by only a single charge and present and the pressure to identical charges cannot transform to two alleged crimes so his actual motion to correct that's what he argues he argues that there's only a single crime so he should not that is a factual determination that the state court would have to make so a thirty eight hundred eight does not apply and i know you were asking about the successive miss of the of the order also you know i will admit that that was not argued later and later proceed it could any at the trial court level with those let me ask you you know one of the purposes of double jeopardy there are various purposes but one of them is to make sure that if the government chooses to prosecute  counts yes but based on which incidents each claim is says on one or more cations so which one hears it so for count one which which event was he convicted of that's the turke out to which one was he convicted or again same exact information exact same wording exact same victim can he pleaded double jeopardy bar at that time yes why how do you know that they're charging him with what ever event he was convicted of in count one and count two and not one of the many other sexual events that occurred between him and the victim because in the information there's a date there's a date you know there's activity and not convicted on the quote unquote many other events of sexual activity and the state now says oh we're charging you with one of those many others well at that point he can make a challenge to and how  he win he did not make a he did not make a claims case as to the original charging document or the verdict form i'm not telling you that he wins in this case i'm asking you how it is that someone can plead double jeopardy correctly or incorrectly in a scenario like this one there are a couple of circuit court opinions one from the six circuit years ago even applying it but deference that says when you do that when the state does something like that then everything other than the first count goes out the window on double jeopardy claim because there is no way to tell whether or not someone was c of the same or a different event if the informations are worded exactly the same and there's a wide range of date it's not like count one said on january third of twenty you know if two thousand and five you engage in sexual activity and count two said on you know april fifth you engage in sexual activity then you would know these are very broad ranges yes well they're broad because there are children and florida courts have said that when it comes to a child victim remembering dates and if it's an ongoing sexual abuse then it can be charged in this way and i'll point to that that if they if they had c with if they had charged him with he could have been charged with twenty counts and there would be no double jeopardy issue for you know you even though you would have no clue which count referred to which event he actually benefits from state charging him and  don't but we do know what was the now to trial and we do know that there were multiple there he admitted to having sex with this child on multiple occasions oh no he did not yes he admitted fact the day that he gave the child with her so he said we did not have sex thirty six days before and we do not have sex thirty days after this timeframe or you know he says that's what you construe as admitting to prior sex with her and after the date and we know that the child is also in that date range so yes he is nine having sex during a particular period admits to thought happened i'm sorry denying having sex and the month of december means that we must have had sex in november and he says we don't or other he says he says we weren't we didn't we weren't together before the on at least one of the counts i think because the evidence was overwhelming that aged in sexual activity with this minor the question is whether as you hypothesise the state could have charged him with twenty five counts with identically word indictment or information's with identically worded six month ranges right without a jury telling us on which event each count was based  the that's the problem with these types of long term sex abuse cases that involve children i mean that the courts have said that you can you can include a date range because then you can do multiple counts one count also qualifies as punishment so assuming for the sake of argument that we just get rid of count to my client to serve the full fifteen years and then he would have a term of probation i think as we all know terms or probation or restraint upon your tory and a blank one that said tell us the date for which you are finding them guilty of count one in they had said you know may third and then the same thing for count two and they had said you know for a number fifteen guilty for something and you know that is a real problem which is why we need special in iraq to tory's and i would submit that unfortunately you know we're left him to clean up this mess but the mess is at least in some of the state court and the action state the case block berger brown do you know north i mean this is case law that's been out there for a very long time so this is not something new this is something that a court should be aware of and should not only under the federal constitution but the florida constitution be aware that you know these double jeopardy and implications here and it's unfortunate but you know that's why we have  relief and that's not to say that the state can't try my client again the counsel be vacated and minor standing is that all the time will be told for special imitations purposes while this is going on so if they want to try him again they could try him again and i would expect that and all likelihood like most cases most cases are resolved by some type of police and given the amount of time that my client is already served you know a very  the scene no additional questions from the panel i asked the court to vacate the decision of the district court with instructions to issue the writ and require that the state tried my client a new