FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-2038

 1D16-2039

 1D16-2040

 1D16-2041

 1D16-2042

(Consolidated for disposition)

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JAMES WILLIAM MOCK, III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Angela Cox, Judge.

June 8, 2018

ROBERTS, J.

The appellant, James William Mock, III, argues that the trial 

court violated the principles of double jeopardy when it 

resentenced him on three counts to fifteen years in prison when it 

previously sentenced him to ten years in prison on those counts. 

Based on the written terms of the plea agreement, the 

representations made by the State and defense during the 

presentation of the plea agreement, and evidence that the trial 

court had the plea agreement before it prior to accepting the plea, 
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we find that the appellant had an expectation in the finality of his 

sentences. 

When the appellant’s case came before the trial court, defense 

counsel told the trial court that the parties had entered into a plea 

agreement to resolve all of the appellant’s pending cases. Defense

counsel stated that the State agreed to drop some of the charges in 

four of the appellant’s six cases and to run his sentences 

concurrently. Upon the State announcing that it had agreed to run 

the three minimum mandatory sentences concurrently rather than 

consecutively, the trial court asked for the cases numbers for those 

minimum mandatory sentences. After the State provided the case 

numbers, the State said “[a]nd all sentences for all cases will be 

run concurrent as well.” Defense counsel then explained the terms 

of the plea agreement, which included a reiteration that all of the 

appellant’s remaining eight counts would run concurrently, with 

the sentences being up to the trial court. 

During the plea colloquy, the trial court went over the 

minimum and maximum sentences the appellant could receive for 

each felony degree. The appellant acknowledged that he 

understood each of the sentencing ranges. The trial court then 

stated that the State agreed to run the minimum mandatory 

sentences concurrently even though they were supposed to run 

consecutively and the minimum sentence he could receive was ten 

years in prison and the maximum sentence was life imprisonment.

The appellant acknowledged that he understood. Later in the plea 

colloquy, the trial court acknowledged that it had plea agreement 

before it when it asked the appellant if he had thoroughly reviewed 

the terms of it. The written plea agreement stated that the State 

agreed that all of the sentences would run concurrently. The trial 

court ultimately accepted the appellant’s plea and postponed 

sentencing. 

In the interim, the appellant hired private counsel and filed a 

motion to withdraw his plea stating that his prior counsel had 

coerced him into accepting the plea and that he did not have 

sufficient time to fully evaluate his decision. Weeks later, he filed 

a notice withdrawing his motion to withdraw his plea. When the 

case came back before the trial court, the trial court conducted 

another colloquy with the appellant to ensure that he understood 
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the terms of his prior plea deal and that he would be bound by 

those terms. In that colloquy, the trial court stated that the 

appellant was leaving sentencing up to the trial court and his 

mandatory minimum sentences would still run concurrently. The 

appellant stated that he understood the terms and still wanted to 

withdraw his motion to withdraw his plea. 

When the parties reconvened months later for sentencing, the 

appellant was still represented by private counsel and there was a 

different prosecutor assigned to the appellant’s case. The trial 

court ordered one of the appellant’s sentences, from a case not 

before this Court on appeal, to run consecutively to his other 

sentences. Neither the State nor the defense brought it to the trial 

court’s attention that the consecutive sentence violated the plea 

agreement. 

The consecutive sentences prompted the appellant to file a 

motion to correct sentencing error pursuant the Florida Rules of 

Criminal Procedure 3.800. At the resentencing hearing, the trial 

court stated that it remembered the plea agreement being 

represented as an agreement to run only the minimum mandatory 

sentences concurrently, but the trial court noted that the written 

plea agreement did not limit the concurrent sentences. The defense 

argued that the plea form was a contract, and the appellant was 

entitled to have all his sentences run concurrently. The State 

argued that the trial court’s interpretation of the parties’ 

agreement was supported by the “spirit of the agreement” and the 

plea colloquy. The State further argued that the original 

prosecutor also confirmed that this was the understanding of the 

parties. The trial court stated that it always intended to sentence 

the appellant to fifteen years in prison and increased the sentences 

at issue by five years. 

The legality of a sentence is a question of law and as such is 

reviewed de novo. Washington v. State, 199 So. 3d 1110, 1111 (Fla. 

1st DCA 2016). Courts perform a de novo review to determine if a 

double jeopardy violation has occurred. Graham v. State, 170 So. 

3d 141, 142 (Fla. 1st DCA 2015). 

As [one’s right to be free from double jeopardy] relates to 

barring multiple punishments for the same offense in the 
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noncapital sentencing context, the application of the 

double jeopardy clause 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. If, however, there is some circumstance 

which undermines the legitimacy of that expectation, 

then a court may permissibly increase the sentence. In 

other words, the later imposition of more onerous terms 

violates the double jeopardy clause only when it disrupts 

the defendant's legitimate expectations of finality.

Dunbar v. State, 89 So. 3d 901, 904-05 (Fla. 2012) (internal 

citations omitted) (internal quotations omitted). 

In this case, the State argues that such circumstances exist. 

The State argues that the appellant waived his right to double 

jeopardy or had no expectation of finality in his sentences. Finding 

no waiver, we turn to whether the appellant had an expectation of 

finality. The only argument advanced by the State that the 

appellant did not have an expectation in the finality of his 

sentences is predicated on the appellant’s affirmative 

misrepresentation of facts to the trial court. The State argues that 

the appellant knew the trial court was making an error and failed 

to correct the trial court’s error concerning the terms of his plea 

agreement. The Florida Supreme Court has stated that a 

defendant who actively misrepresents facts to the trial court does 

not have an expectation in the finality of his sentences. Goene v. 

State, 577 So. 2d 1306, 1309 (Fla. 1991). To support its position 

that the appellant did not have an expectation in the finality of his 

sentences based on a misrepresentation, the State cited to two 

cases. 

The first case is Unger v. State, 492 So. 2d 1168 (Fla. 4th DCA 

1986). In Unger, the Fourth District Court of Appeal reviewed the 

original plea colloquy and found that the defendant did not deceive 

the trial court about her previous criminal history as alleged by 

the State, but merely answered her counsel’s questions about the 

restitution in her previous case. The Fourth District Court held 

that the defendant did not waive her double jeopardy rights 

because the record was far from clear that the defendant either 
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intended to misrepresent her criminal record or understood that 

her failure to furnish more information about her criminal record 

could result in a harsher sentence. 

The State also cited to United States v. Jones, 722 F.2d 632 

(11th Cir 1983). In Jones, the trial court structured the defendant’s 

sentence in a way that allowed him to assist in the harvesting of 

his crops, so that the crops could be sold to help pay back the 

federal government the money the defendant owed it. Later that 

same week, the trial court realized that it had erroneously 

concluded that the yield from the crops could be used to pay back 

the government and increased the defendant’s sentence. On 

appeal, the Eleventh Circuit said that one could argue that the 

defendant knew or should have known that the trial court 

misunderstood the situation, but it declined to create a process to 

explore a defendant’s understanding of the process. The Eleventh 

Circuit reasoned that even though the defendant might have been 

aware that the government would have difficulties in obtaining 

any portion of the crop yields, it could not assume that the 

defendant knew that the trial court had not taken all the available 

information into account and would have sentenced him more 

harshly if it had. The Eleventh Circuit held that the defendant had 

an expectation in his initial sentence. 

Based on Unger and Jones, there should be evidence contained 

in the record that the appellant withheld information from the 

trial court. The only possible information the appellant could have 

withheld from the trial court was his knowledge of the trial court’s 

misunderstanding about the plea agreement. In order for this 

Court to find that the appellant withheld this knowledge, this 

Court has to know that the appellant possessed this knowledge. 

There are multiple instances in which the trial court stated that 

the State had agreed to run the minimum mandatory sentences 

concurrently. Those statements can be interpreted as containing 

the entirety of the trial court’s understanding of the plea, or as the 

trial court emphasizing that specific portion of the plea agreement 

because that portion required the trial court to sentence the 

appellant to at least ten years in prison. Because the trial court’s 

statements can be interpreted differently, this Court cannot 

assume that the appellant possessed the knowledge that the trial 

court was confused about the plea agreement. 
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The dissent argues that the appellant should have known that 

he was facing a maximum sentence of fifteen years in prison when 

he filed his motion to correct sentence. This argument 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. Unlike some federal 

courts, Florida courts have not adopted this procedure. 

Accordingly, we reverse and remand for reinstatement of the 

appellant’s original sentences in each of the cases on appeal. 

REVERSED and REMANDED with directions.

M.K. THOMAS, J., concurs; WINOKUR, J., dissents with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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WINOKUR, J., dissenting.

Mock initially received a sentence of ten years on these counts, 

followed by a consecutive sentence of five years, in spite of the fact 

that the plea agreement called for all counts to run concurrent. 

Mock later informed the court that the counts were supposed to 

run concurrent, so the court altered the sentences to fifteen years 

concurrent. Mock then claimed that the increase of sentences from 

ten to fifteen years violates double jeopardy because he had a 

“legitimate expectation of finality” in the ten-year sentences. I 

would affirm because I cannot conclude that a defendant has a 

legitimate expectation of finality in a sentence that violates the 

plea agreement on which it is based. See Dunbar v. State, 89 So. 

3d 901, 904-05 (Fla. 2012) (noting that “the later imposition of 

more onerous terms ‘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. 
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1992)).* To the extent Mock did have a reasonable expectation of 

finality in the original sentence, it was that it called for a total of 

fifteen years imprisonment. This term remained unchanged by the 

second sentencing order.

Mock’s claim is curious because it was he who actually moved 

the court to correct the sentencing order. The court did so, but in a 

manner that did not suit him. Mock then changed course and 

claimed that he had a reasonable expectation in the finality of the 

very sentence that he had moved to correct. Appellant reasonably 

expected finality in the entire original sentence, not just the part 

of it that benefits him.

The majority holds that a defendant has a reasonable 

expectation of finality in a sentence unless there is “evidence 

contained in the record that the appellant withheld information 

from the trial court.” Maj. op. at 5. Reasoning that the record here 

discloses no evidence that Mock withheld knowledge of the court’s 

misunderstanding of the plea agreement, the majority concludes 

that he had a reasonable expectation that the ten-year sentences 

were final. Annatone v. State, 198 So. 3d 1031 (Fla. 5th DCA 2016), 

belies this rule: the defendant there did not withhold information 

that resulted in an improper sentence. Instead, the parties simply 

failed to correct the sentencing court when it entered a sentence 

that was contrary to the plea agreement. Id. A “reasonable 

expectation” is not “any expectation that does not derive from 

deception.” It is just one that is reasonable. Mock’s expectation 

that he could only be sentenced to ten years was unreasonable. It 

was unreasonable not because he withheld the fact that the 

sentence violated the plea agreement, but because no reasonable 

person could rely on a sentence that violates the plea agreement. 

 * See Annatone v. State, 198 So. 3d 1031, 1034 (Fla. 5th DCA 

2016) (finding that a defendant has no legitimate expectation of 

finality in the pronouncement of restitution in an amount lower 

than that to which he agreed as part of a negotiated plea 

agreement that the court had accepted). See also State v. 

Rodrigues, 218 P.3d 610, 618–19 (Utah 2009) (holding that a 

defendant had no legitimate expectation of finality of a sentencing 

order “because it did not reflect what he had agreed to in the plea 

agreement”).
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Nor would any person who reasonably expected finality in a 

sentence move to change it. Accordingly, I would affirm the 

challenged sentences and would not unduly restrict the meaning 

of “unreasonable” in this context.

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Andy Thomas, Public Defender, and Steven Seliger, Assistant 

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, 

Assistant Attorney General, Tallahassee, for Appellee