                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ADAM ODOM,                            NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-3540

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed June 28, 2016.

An appeal from the Circuit Court for Okaloosa County.
Michael Flowers, Judge.

Glenn M. Swiatek, Shalimar, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney
General, for Appellee.



PER CURIAM.

      In this postconviction appeal, appellant claims that the trial court committed

reversible error in (1) denying appellant’s motion for a competency evaluation after

the evidentiary hearing; and (2) denying appellant’s requests to amend his

postconviction motion by adding a double jeopardy claim.          We affirm as to

appellant’s first claim without discussion. However, because the state properly
concedes error as to appellant’s second claim, we reverse and remand for further

proceedings.

      Appellant entered a negotiated plea of nolo contendere to driving while

license suspended or revoked (DWLSR) resulting in death (count one), a third-

degree felony punishable by up to five years in prison, and vehicular homicide (count

two), a second-degree felony punishable by up to fifteen years in prison, conditioned

on a sentencing cap of fifteen years in prison. Pursuant to the plea, appellant was

adjudicated guilty of both offenses and sentenced to concurrent terms of five years

in prison on count one and ten years in prison on count two. Appellant subsequently

filed a motion for postconviction relief seeking to withdraw his plea due to the

ineffective assistance of counsel.    Before the trial court ruled on the motion,

appellant twice requested to amend his postconviction motion by adding a double

jeopardy claim challenging his dual convictions for vehicular homicide and DWLSR

resulting in death. The trial court denied these requests and then denied appellant’s

motion for postconviction relief. This appeal followed.

       In moving to amend his postconviction motion, appellant correctly asserted

that dual convictions for vehicular homicide and DWLSR resulting in death violate

double jeopardy where there is a single death. Hunt v. State, 769 So. 2d 1109, 1111

(Fla. 2d DCA 2000); Pierce v. State, 718 So. 2d 806, 810 (Fla. 4th DCA 1997).

Although appellant entered a nolo contendere plea, entry of a plea does not constitute

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a waiver of double jeopardy where (1) the plea is a general plea as opposed to a plea

bargain; (2) the double jeopardy violation is apparent from the face of the record;

and (3) there is nothing in the record to indicate a waiver of the double jeopardy

violation. Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994). Although appellant

entered a bargained-for plea conditioned on a sentencing cap of fifteen years,

appellant received no actual “bargain” because he could not be lawfully sentenced

to more than fifteen years even if he had entered an open plea. We conclude that

appellant raised a facially sufficient claim that he was entitled to withdraw his plea

based on a violation of double jeopardy where (1) the plea was effectively a general

open plea; (2) the double jeopardy violation is apparent on the face of the record;

and (3) there is no indication of a waiver in the record. See Abbate v. State, 82 So.

3d 886 (Fla. 4th DCA 2011). The state correctly concedes that the trial court should

have allowed appellant to amend his postconviction motion to raise this timely

double jeopardy claim. Accordingly, we reverse and remand with directions that the

trial court consider appellant’s double jeopardy claim on the merits. See Kline v.

State, 858 So. 2d 1257 (Fla. 1st DCA 2003) (holding that where a defendant files a

motion requesting leave to amend a postconviction motion before the trial court rules

and before the limitations period expires, the trial court must allow the amendment

prior to ruling on the motion).

      AFFIRMED in part; REVERSED in part; and REMANDED with directions.

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ROWE, KELSEY, and JAY, JJ., CONCUR.




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