## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 16

- 2038
1D16

- 2039
1D16

- 2040
1D16

- 2041
1D16

- 2042 (Consolidated for disposition)

_____________________________

J AMES W ILLIAM M OCK

, I II

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County

. Angela Cox , Judge

.

June 8, 2018

R OBERTS

, J

.

The a ppellant, 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 thos e counts.
Based on t he 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,2 we find that the appell ant 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. D efe nse counsel stated that the State agreed to drop some of the charges in
four of the a ppellant’s six cases and to r un his sentences concurrently. Upon the State announcing that it had agreed to run the three minimum mandatory sentences concurr ently rather t han consecutively, the trial court asked for the cases numbers for those minimum mandatory sentences. After the Sta te provided the case numbers, the State said “[a]nd all sentences for all cases will be
run concurrent as well.” Defense counsel then explai ned 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 a ppellant could re ceive for each felony degree. The a ppellant 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 eve n 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 a ppellant ac knowledged that he understood. Later in the plea colloquy, the trial court ac knowledged that it had plea agreement before it when it asked the appellant if he had thoro ughly reviewed
the terms of it. The written plea agreement stated that the State agreed that all of the sentences would run concu rrently. The trial court ultimately accepted the appellant’s plea and postponed sentencing.

In the interim, the a ppellant 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 t o fully evaluate his decision. Weeks later, he filed a notice withdrawing hi s motion to withdraw his plea. When the case came back before the trial court, the trial court conducted another colloquy with the a ppellant to ensure that he unde rstood3 the terms of his prior plea deal and that he would be bound by
thos e 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

a ppellant stated that he understood the terms and still wanted to withdraw his motion to withdraw his plea.

When the parties reconvene d months later for sentencing, the

a ppellant was still represented by private counse l and there was a different prosecutor assigned to the a ppellant’s case. The trial
court ordered one of the a ppellant’s sentences, from a case not before this Court on appeal, to run consec utively to his other

sentences. Neither the State nor the defense b rought it to the trial court’s attention that the consecutive sentence violated the plea
agreement.

The consecutive sentences prompted the a ppellant to file a motion to correct sentencing error pursuant the Florida Rule s 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 l imit the c oncurrent sentences. The defense argued that the plea form was a contract, and the a ppellant was
entitled to have all h is sentences run concurrently. The State argued that the trial court’s interpretation of the parties’ agreement was supported by the “spi rit of the agr eement” and the plea colloquy. The State further argued that the original prosecutor also confirmed that this was th e understanding of the parties. The trial court stated that it always intended to sentence
the a ppellant to fifteen years in p rison and increased the sentences at issue by five years.

The legality of a sentence is a question of law an d as such is
reviewed de novo. Washington v. State , 199 So. 3d 1 110, 1111 (Fla. 1st DCA 2016). Courts perform a de novo review to determine if a double jeopardy violation has oc curred. 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 the4 noncapital sentencing context, the app lication 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 jeop ardy 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 onl y 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 St ate argues that the a ppellant 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 exp ectation of finality. The only argument advanced by the State that the appel lant 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 , 57 7 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 S o. 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 que stions about the

res titution 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 either5 intended to misrepresent her criminal record or un derstood 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

senten ce 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 th e 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, t he Eleventh Circuit said that one could argue that the
defendant knew or should have known that the trial court
misunderstood the si tuation, 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 t he 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 sentenc ed him more harshly if it had. The Eleventh Circuit held that the defendant had an expectation i n 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 withh e ld 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 ma ndatory 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 spe cific 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 po ssessed the knowledge that the trial

court was confused about the plea agreement

.6 The dissent argues that the appellant should have known that he was facing a maximum sentence of fifteen years in prison when
he filed h is 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

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

R EVERSED and R EMANDED with directions.

M.K. T HOMAS

, J., concur s; W INOKUR

, J. , dissent s with opinion

.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________

W INOKUR , J., dissenting.

Mock initially received a sentence of ten years on these counts,
fo llowed 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 fifte en 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 defend ant 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.7 1992)). * To the extent Mock did have a reasonable expectation of finality in the original sentence, it w as 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

man ner 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 par t 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 ac cepted). 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”).8 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.

_____________________________

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