         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-2038
                             1D16-2039
                             1D16-2040
                             1D16-2041
                             1D16-2042
                  (Consolidated for disposition)
                 _____________________________

JAMES WILLIAM MOCK, III,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


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,
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

                                 4
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.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

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.



                                  6
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.

                _____________________________

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




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