       Third District Court of Appeal
                                State of Florida

                             Opinion filed July 8, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D12-625
                          Lower Tribunal No. 00-38717
                              ________________


                             The State of Florida,
                                     Appellant,

                                         vs.

                               Diego J. Jimenez,
                                     Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Nushin G.
Sayfie, Judge.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellant.

      Diego J. Jimenez, in proper person.

Before LAGOA, SALTER, and LOGUE, JJ.

      LAGOA, J.

      The State of Florida (the “State”) appeals the trial court’s order granting in

part defendant, Diego J. Jimenez’s (“Jimenez”), Rule 3.800(a) motion.
Specifically, the State appeals paragraph three of the trial court’s order which

states:

                3.     In points three and four, the Defendant claims that
                the trial court violated the double jeopardy clause when
                the Defendant was resentenced in Counts 3, 4, 6 & 7,
                after the statutory maximum sentences had already been
                served. At the time of the original sentence in 2003, the
                Defendant was sentenced to sixty (60) years in state
                prison without any apportionment per count. This error
                was corrected by the trial court on February 8, 2008 (and
                this order was subsequently affirmed on appeal.)
                However, the Defendant is correct that at the time of the
                resentencing, the statutory maximum of five (5) years
                had expired in counts 3, 4, 6 and 7. Counts 3, 4 and 6
                were all consecutive to each other and consecutive to
                counts 1 (15 years) and 2 (30 years). As such, double
                jeopardy would bar any resentencing on these counts, and
                the Defendant is entitled to relief on this ground,
                resulting in a sentence reduction of fifteen (15) years.
                Ellis v. State, 913 So. 2d 1255 (Fla. 2d DCA 2005);
                Palmer v. State, 182 So. 2d 625 (Fla. 4th DCA 1966).

          The State contends that the trial court erred in granting in part the Rule

3.800(a) motion based upon a claim of double jeopardy.             For the following

reasons, we affirm in part and reverse in part.

I.        FACTUAL AND PROCEDURAL HISTORY

          Because Jimenez has filed multiple post-conviction motions, we find it

necessary to address them here.1 Jimenez was charged with the following eight

counts: attempted first degree murder of a law enforcement officer (Officer

Rosario) (Count 1); aggravated battery of a law enforcement officer (Officer

1 We do not, however, address the multiple petitions for writs of habeas corpus
filed by Jimenez—both at the state and federal level.
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Rosario) (Count 2); depriving Officer Rosario of his means of communication

(Count 3); two counts of battery of a law enforcement officer (Officers Mirone and

Aiken) (Counts 4 and 5); and three counts of resisting arrest with violence

(Officers Rosario, Mirone and Aiken) (Counts 6, 7, and 8). After a jury trial,

Jimenez was found guilty of: count 1, aggravated assault of Officer Rosario (as a

lesser included offense of attempted first degree murder of a law enforcement

officer); Counts 2, 3, and 4; Count 5, battery (as a lesser included offense of

battery of a law enforcement officer - Officer Aiken); and Counts 6, 7, and 8. At

sentencing, the trial court granted the state’s motion to dismiss Count 8, as that

count of resisting arrest without violence was based upon the same facts as Count

7. On September 5, 2003, Jimenez was sentenced to sixty years in prison for

Counts 1 through 4, and 364 days for counts 5 through 7. His convictions were

affirmed in Jimenez v. State, 914 So. 2d 970 (Fla. 3d DCA 2005) (table).

      On October 5, 2006, Jimenez filed a Rule 3.850 motion claiming ineffective

assistance of counsel by failing to: (1) investigate and call emergency medical

technicians as witnesses (who were available and known) whose testimony would

have created a credibility issue relating to Officer Rosario; (2) immediately reopen

the case when Lazaro Gonzalez, an eyewitness, arrived prior to the trial judge’s

completion of the jury instructions; (3) file a pretrial motion to suppress an illegal

stop where the arresting officer, Officer Rosario, had not witnessed any moving

violations sufficient to make a traffic stop; (4) file a pretrial motion in limine to

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prevent Ciro Frias from testifying that Jimenez was employed as a secret police

officer for Cuba, where that testimony was prejudicial, damaging, and irrelevant to

the case; and (5) preserve sentencing errors via a Rule 3.800(b)(1) motion. The

trial court entered an order denying the motion, and this Court affirmed in Jimenez

v. State, 959 So. 2d 737 (Fla. 3d DCA 2007) (table). The mandate issued on

March 13, 2008.

      On January 14, 2008, Jimenez filed a Rule 3.800(a) motion which asserted

that his sixty-year general sentence was not properly apportioned, and was

therefore illegal. The State conceded error and the trial court granted the motion.

On February 8, 2008,2 the trial court nunc pro tunc resentenced Jimenez as

follows: Count 1, fifteen years with a five-year minimum mandatory sentence;

Count 2, thirty years consecutive to Count 1; Count 3, five years consecutive to

Counts 1 and 2; Count 4, five years consecutive to Counts 1, 2, and 3; Count 5,

365 days county jail concurrent with Counts 1, 2, 3, and 4; Count 6, five years

consecutive to Counts 1, 2, 3, and 4, and concurrent with Count 5; Count 7, five

years concurrent with Counts 1 through 6; and Count 8, dismissed.

      On March 3, 2008, Jimenez filed another Rule 3.800(a) motion for

correction arguing that the new sentencing order was in error, as the trial court

imposed consecutive portions, and thereby allegedly violated the “single episode”

principle of law. In its response, the State argued that Jimenez’s argument was

2The trial court’s order was entered nunc pro tunc to reflect the original sentencing
date of September 5, 2003.
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without merit and that Jimenez was procedurally barred from filing the motion.

The trial court denied the motion on the merits and this Court affirmed the denial

in Jimenez v. State, 990 So. 2d 1075 (Fla. 3d DCA 2008) (table). The mandate

issued on September 8, 2008.

      While Jimenez’s March 3, 2008 Rule 3.800 motion was pending, Jimenez

filed another Rule 3.850 motion on May 29, 2008.         In that motion, Jimenez

claimed that the police stop of the car in which he was a passenger was not based

upon reasonable suspicion, that the subsequent search therefore was illegal, and

that the resulting evidence should have been suppressed. The trial court denied the

motion and this Court affirmed in Jimenez v. State, 20 So. 3d 858 (Fla. 3d DCA

2009) (table). The mandate issued on November 24, 2009.

      On February 11, 2011, Jimenez filed his third Rule 3.800(a) motion. In this

motion, Jimenez asserted the following claims:

            I.  THE SENTENCE IMPOSED IN COUNT ONE
            EXCEEDS STATUTORY MAXIMUM FOR THIRD
            DEGREE FELONY.

            II. THE TRIAL COURT ILLEGALLY RE-
            SENTENCED DEFENDANT FOR A FIRST DEGREE
            FELONY IN COUNT #2 WHEN THE DEFENDANT
            WAS FOUND GUILTY OF A LESSER CRIME, A
            THIRD DEGREE FELONY.

            III. THE TRIAL COURT VIOLATED THE
            DOUBLE    JEOPARDY  CLAUSE   WHEN    IT
            RESENTENCED DEFENDANT IN COUNTS 3 AND 4
            AFTER THE STATUTORY MAXIMUM SENTENCE
            HAS BEEN SERVED.

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             IV. IMPOSITION OF INCREASED SENTENCE IN
             COUNTS 6 AND 7, UPON RE-SENTENCING,
             VIOLATED THE DOUBLE JEOPARDY CLAUSE.

             V.  INCORRECT CALCULATED SCORESHEET,
             ASSESSMENT OF VICTIM INJURY POINTS.

      The motion was denied by the trial court as successive, duplicative and

untimely. Based on the State’s proper concession of error, this Court, in Jimenez

v. State, 88 So. 3d 194 (Fla. 3d DCA 2011), held that the motion was not

successive or untimely and reversed and remanded to the trial court.

      On February 24, 2012, the trial court ruled on the motion, denying it in part

and granting it in part on the grounds of double jeopardy. This appeal follows

solely as to paragraph 3 of the trial court’s order.3

II.   ANALYSIS

      We begin our analysis by noting that Jimenez was properly resentenced by

the trial court on February 8, 2008, as his initial sentence was not properly

apportioned and was instead an illegal          “general sentence” that ordered the

defendant to sixty years as to Counts 1, 2, 3, and 4, and 364 days as to Counts 5, 6,

and 7. The trial court properly resentenced Jimenez by entering a separate, distinct

sentence for each count. See Holmes v. State, 100 So. 3d 281, 283 (Fla. 3d DCA

2012) (finding that a general sentence to cover multiple counts is an illegal

sentence; Rule 3.701(d)(12), Fla. R. Crim. P., provides “[a] sentence must be

3 Jimenez did not file a cross-appeal as to the remaining rulings made in the
February 24, 2012 order. Therefore, paragraph 3 of the February 24, 2012 order is
the only portion contested.
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imposed for each offense.”); Kissel v. State, 757 So. 2d 631, 632 (Fla. 5th DCA

2000) (recognizing that a general sentence is an illegal sentence).

      We now turn to the issue before us. With regards to Counts 3 and 4,

Jimenez was originally sentenced to a general sentence of sixty years. Upon

resentencing, Jimenez was sentenced to fifteen years for Count 1, thirty years for

Count 2, five years for Count 3, and five years for Count 4, all to run consecutive

to each other.4 In his February 11, 2011, Rule 3.800(a) motion (the third rule 3.800

motion), Jimenez argued that by resentencing him as to Counts 3 and 4, his double

jeopardy rights were violated. Specifically, Jimenez asserted that because the

statutory maximum of five years had expired with regards to Counts 3 and 4, his

double jeopardy right had been violated when the trial court resentenced him as to

these counts. The trial court agreed with the totality of Jimenez’s argument,

granted the motion, and this appeal ensued.

      We conclude that the trial court erred in finding that double jeopardy barred

resentencing on Counts 3 and 4 because the statutory maximum of five years had

expired. First, we find that because the original 2003 sentence was a general

sentence and invalid, it was subject to correction under Florida Rule of Criminal

Procedure 3.800(a).    “It does not offend double jeopardy principles to resentence

a defendant to harsher terms when the original sentence was invalid, particularly


4 We note that on resentencing a court may impose consecutive sentences in order
to effect the intent of the original sentencing court. See Finethy v. State, 962 So. 2d
990, 992 (Fla. 4th DCA 2007).
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when, as in the instant case, it is the defendant who brings his sentence into

question." Allen v. State, 853 So. 2d 533, 536 (Fla. 5th DCA 2003). Because

Jimenez’s initial sentence was an illegal sentence “at resentencing, the trial court

may impose any sentence consistent with the sentencing laws in effect on the date

of the offense, even if it results in a harsher sentence.” Clark v. State, 72 So. 3d

222, 226 (Fla. 2d DCA 2011).

      Of course, once a sentence has been fully satisfied, even if it is an illegal or

invalid sentence, a trial court cannot increase or amend the sentence, as this would

violate a defendant's double jeopardy rights. See Clark, 72 So. 3d at 226, n.2

(“‘Once a sentence has already been served, even if it is an illegal sentence or an

invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy

Clause by reasserting jurisdiction and resentencing the defendant to an increased

sentence.’” (citing Maybin v. State, 884 So. 2d 1174, 1175 (Fla. 2d DCA 2004)

(emphasis added))).

      Here, there is no dispute that the original 2003 sentence was illegal, and that

Jimenez had been sentenced to sixty years as to Counts 1 to 4. That illegal

sentence of sixty years had not been fully served when the trial court properly

resentenced Jimenez and apportioned the initial sixty-year sentence among Counts

1 to 4. Cf. Ellis v. State, 913 So. 2d 1255, 1257 (Fla. 2d DCA 2005) (citing

Willingham v. State, 833 So. 2d 237, 238 (Fla. 4th DCA 2002)); Sneed v. State,

749 So. 2d 545, 546 (Fla. 4th DCA 2000). Accordingly, because a legal sentence

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had not been initially imposed, jeopardy did not attach, and the trial court had

jurisdiction to amend the sentence to apportion it to run consecutively among

Counts 1 through 4 as the initial sixty year sentence that included Counts 3 and 4

had not been satisfied at the time of resentencing. See Allen, 853 So. 2d at 535.

See generally Dunbar v. State, 89 So. 3d 901, 906 n.5 (Fla. 2012) (approving the

double jeopardy analysis in Dunbar v. State, 46 So. 3d 81 (Fla. 5th DCA 2010),

that where initial sentence was invalid, double jeopardy principles were not

implicated by later addition of harsher terms); Clark v. State, 72 So. 3d 222, 226

(Fla. 2d DCA 2011) (holding that because original sentence was illegal, the

resulting sentence on remand may be harsher without violating double jeopardy;

“[I]f the original sentence was an illegal sentence, at resentencing, the trial court

may impose any sentence consistent with the sentencing laws in effect on the date

of the offense . . . .”).

       We, therefore, find that the trial court, in its February 24, 2012, written

order, erred in finding that the defendant's double jeopardy rights with respect to

Counts 3 and 4 had been violated as a result of the resentencing. Because we find

that the trial court erred in reducing the defendant's sentence with respect to these

counts, we reverse in part paragraph 3 of the trial court’s order.

       With respect to Counts 6 and 7, however, we affirm the trial court’s ruling

that resentencing on those counts violated double jeopardy. In 2003, the trial court

sentenced Jimenez to a total of 364 days as to Counts 5, 6, and 7. By February

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2008, when the trial court resentenced Jimenez, he had already fully satisfied that

sentence. As discussed supra, once a sentence has been fully satisfied, even if it is

an illegal or invalid sentence, a trial court may not increase or amend the sentence,

as this would violate a defendant's double jeopardy rights. See Clark, 72 So. 3d at

226, n.2. See, e.g., Ellis, 913 So. 2d at 1256-57; Hodges v. State, 780 So. 2d 967,

968 (Fla. 5th DCA 2001); Sneed, 749 So. 2d at 546. Accordingly, because the

initial sentence that included Counts 6 and 7 had already been served at the time of

resentencing, the trial court did not have the power on February 8, 2008 to

resentence Jimenez as to Counts 6 or 7. We, therefore, find that the trial court

properly reduced Jimenez's sentence as to those counts on February 24, 2012.

      For the reasons stated, we affirm in part and reverse in part paragraph 3 of

the trial court’s February 24, 2012 order and remand for the entry of a sentence

consistent with this opinion. The defendant need not be present for the entry of the

revised sentence.

      AFFIRMED IN PART; REVERSED IN PART.




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