       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 10, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D09-2044
                        Lower Tribunal No. 06-33761-B
                             ________________


                                John Santiago,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Michael Mervine, Assistant
Attorney General, for appellee.


Before SHEPHERD, C.J., and SUAREZ, and LAGOA, JJ.

      SHEPHERD, C.J.
         This is an appeal by John Santiago from his conviction and sentence after a

jury trial. His assignments of error are that: (1) the trial court erred by amending

the sentence to add a habitual violent felony offender designation after having

made an evidentiary determination (at the original sentencing) that the State failed

to establish Santiago qualified as a habitual violent felony offender; and (2) his

sentence was vindictive. We agree with Santiago on his first assignment of error

and, because we reverse Santiago’s sentence on this basis, find it unnecessary to

consider the second assignment of error. A brief summary of the factual and

procedural background of the case is necessary to explain our decision.

                 FACTUAL AND PROCEDURAL BACKGROUND

         On June 9, 2009, following a jury trial, the trial court entered a judgment of

conviction against John Santiago for the crimes of robbery with a non-deadly

weapon and simple battery.1 Robbery with a non-deadly weapon is a first-degree

felony and, generally, the maximum sentence permitted by statute for this crime is

thirty years. See §§ 775.082(3)(b), 812.13(2)(b), Fla. Stat. (2006). However, if a

defendant qualifies as a habitual violent felony offender pursuant to section

775.084(1)(b) of the Florida Statutes, a defendant may be sentenced up to a

maximum of life in prison, and must be sentenced to a mandatory minimum of

fifteen years. See § 775.084(4)(b)1.


1   The battery conviction and sentence is not a part of this appeal.

                                            2
      On June 30, 2009, the trial court held a sentencing hearing and sentenced

Santiago to life in prison without any mandatory minimum. Although it appears

from our review of the record that Santiago had received the requisite notice and

qualified for designation as a habitual violent felony offender, the court, prior to

imposing sentence, made an evidentiary determination that the State failed to prove

Santiago was given the necessary notice. Therefore, Santiago did not qualify as a

habitual violent felony offender.2 Nevertheless, the trial judge sentenced Santiago

to life in prison, citing as its reason “protection of the community.” This sentence

was illegal.

      Perhaps recognizing its predicament, the State returned to court eight days

later3 and orally moved to resentence Santiago as a habitual violent felony

offender.      At this subsequent sentencing proceeding, the State succeeded in

demonstrating it provided the requisite notice, and the trial judge elicited a sworn

admission from Santiago that he had the necessary qualifying prior conviction. At

the conclusion of this second sentencing proceeding, the trial judge reversed his

original determination, pronounced Santiago qualified as a habitual violent felony

offender, orally “resentence[d]” him as such, and entered a “corrected” written

sentence reflecting his actions. In so doing, the court reversibly erred.


2 It appears a substitute assistant state attorney represented the State at the original
sentencing hearing.
3 At this point, Santiago had already begun serving his non-HVFO life sentence.



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                                   ANALYSIS

      As our supreme court has made clear, a habitual offender designation is as

much a part of a sentence as is incarceration. See State v. Matthews, 891 So. 2d

479, 488-89 (Fla. 2004) (“Habitual offender sentences are enhanced sentences

imposed in an attempt ‘to protect society from habitual criminals who persist in the

commission of crime after having been theretofore convicted and punished for

crimes previously committed.’”) (quoting State v. Peterson, 667 So. 2d 199, 200

(Fla. 1996)). “Once a sentence has been imposed and the person begins to serve

the sentence, that sentence may not be increased without running afoul of double

jeopardy principles.” Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003). In the

case before us, Santiago began to serve his original life sentence immediately upon

its pronouncement on June 30, 2009. Thus, the purported “resentence” of Santiago

as a habitual violent felony offender eight days later violated Santiago’s double

jeopardy rights.   See Akins v. State, 98 So. 3d 60 (Fla. 2011) (concluding

transformation of a “guidelines” sentence imposed at a probation revocation

hearing into a habitual offender sentence in a subsequent jail credit proceeding

violated double jeopardy where the trial court inadvertently failed to announce at

the revocation hearing that the sentence imposed remained a habitual offender

sentence); Rivera v. State, 862 So. 2d 55, 56 (Fla. 2d DCA 2003) (stating

amendment of sentence to impose sex offender probation in addition to previously



                                         4
pronounced drug probation constituted violation of defendant’s double jeopardy

rights); Martinez v. State, 625 So. 2d 1306, 1307 (Fla. 3d DCA 1993) (determining

trial court’s initial decision not to sentence the defendant as a habitual offender

precluded such a sentence on remand) (citing Grimes v. State, 616 So. 2d 996, 998

(Fla. 1st DCA 1992)).4

      Given the trial court’s evidentiary determination at the original sentencing

that Santiago did not qualify as a habitual violent felony offender, the statutory

maximum sentence for this first-degree felony was thirty years. The sentence of

life as a non-habitual violent felony offender was therefore illegal. If the State

believed the trial court erred in determining Santiago did not qualify as a habitual

violent felony offender, its remedy lay in an appeal of this finding, rather than

seeking an “amended sentencing” eight days after the judgment and sentence was

pronounced and after Santiago had begun to serve the sentence. See Fla. R. App.

P. 9.140(c)(1)(M), (N). The State did not take an appeal, nor did it file a cross-

appeal of that finding in the presently pending appeal of the trial court’s

“corrected” sentence.



4 It is worth pausing to note that the “resentencing” proceeding conducted by the
trial judge at the request of the State was not a true resentencing hearing. It is
better described as a proceeding to “amend” an earlier pronounced sentence. The
hearing was held in an attempt to legalize an otherwise illegal sentence. The
distinction is not without a difference. The peril posed by sanctioning State “do-
overs” of evidentiary determinations made at a sentencing proceeding is palpable.

                                         5
      For the reasons stated, we vacate the amended judgment and life sentence

imposed on Santiago and remand with directions that the trial court resentence

Santiago as a non-habitual violent felony offender in accordance with section

775.082(3)(b) of the Florida Statutes.

      So ordered.




                                         6
                                                     John Santiago v. State of Florida
                                                                Case no. 3D09-2044


      LAGOA, J. (specially concurring).

      While I concur with the result reached by the majority, I write separately to

address both the issues raised by the State’s position in this appeal, and what I

believe is the basis for reversal and remand – the trial court’s lack of jurisdiction to

“correct” Santiago’s illegal sentence to provide for a non-mandatory designation as

a habitual violent felony offender.

      Santiago was charged with armed robbery with a deadly weapon and

aggravated battery. After a jury trial, he was found guilty of the lesser included

offense of armed robbery without a deadly weapon and simple battery. On June 30,

2009, the trial court sentenced Santiago to life in prison. Both parties agree that this

was an illegal sentence, and that the maximum sentence Santiago could have

received was thirty years.

      On July 8, 2009, the state orally moved to correct the sentence, apparently to

show that Santiago should have been sentenced as a habitual violent felony

offender.5 Indeed, a review of the record shows that when the State returned to the

trial court on July 8, 2009, it was in order to attempt to establish (for a second



5The record does not contain a written motion filed by the State that prompted the
hearing.

                                           7
time)6 that Santiago qualified as a habitual violent felony offender, and not to

correct Santiago’s sentence because it exceeded the statutory maximum.

      At the beginning of the July 8th hearing, the trial court stated as follows:

“All right, Mr. Santiago, I know that [defense attorney] has explained why we’re

back. It was my omission to check to see that you were really an HVO, and I just

can’t take that for granted.” After finding that Santiago had been notified of the

State’s intention to seek enhancement and that he had the necessary qualifying

prior conviction, the trial court “resentenced” Santiago to life as a habitual violent

felony offender. The July 8th written sentencing order states that the sentence

entered on June 30th was “corrected” due to a “clerical error.” This appeal ensued.

      Here, it is undisputed that the original June 30th sentence was illegal as it

was in excess of the statutory maximum.7 Pursuant to Rule 9.140(c)(1)(M), Fla. R.

App. P., the State may appeal from an order “imposing an unlawful or illegal

sentence or imposing a sentence outside the range permitted by the sentencing

guidelines.” Moreover, pursuant to section 924.07(1)(e), Florida Statutes, the State

may appeal from “[t]he sentence, on the ground that it is illegal.” Because the

6 The trial court did not initially impose a habitual violent felony offender
designation because Santiago’s attorney claimed not to have been notified of the
State’s intention to seek enhancement.
7 Illegal sentences include only: “(1) those sentences in excess of the statutory

maximum; (2) those sentences that fail to give credit for record jail time; and (3)
those sentences that violate double jeopardy by a post sentencing enhancement
clear from the record.” Robinson v. State, 757 So. 2d 532, 533 (Fla. 4th DCA
2000).

                                          8
original sentence of June 30 was illegal, it was appealable by the State. Instead of

appealing the June 30th order, however, the State sought relief by attempting to

“correct” the sentence before the trial court through an ore tenus motion. In its

brief, the State attempts to characterize its ore tenus motion before the trial court as

one made pursuant to Florida Rule of Criminal Procedure 3.800(a), which provides

that “[a] court may at any time correct an illegal sentence imposed by it . . . when it

is affirmatively alleged that the court records demonstrate on their face an

entitlement to relief.” Fla. R. Crim. P. 3.800(a). The record shows, however, that

the “correction” the State sought below was not related to the sentence’s

illegality—that it exceeded the statutory maximum—but instead to the trial court’s

failure to designate Santiago a habitual violent felony offender under section

775.084, Florida Statutes (2006).8 Because the State did not seek to “correct an

illegal sentence,” Rule 3.800(a) is not applicable.

      Additionally, although the State may file a motion to correct a sentencing

error under Rule 3.800(b), it may only do so when “the correction of the

sentencing error would benefit the defendant or to correct a scrivener’s error.” Fla.


8 Indeed had the State sought to challenge the trial court’s failure to designate
Santiago a habitual violent felony offender, its remedy would not be through a
Rule 3.800(a) motion. Cf. State v. McMahon, 94 So. 3d 468, 477 (Fla. 2012)
(holding that trial court’s failure to conduct a hearing on defendant’s habitual
felony offender status under section 775.084 did not render a sentence illegal
because “the trial court was not mandated to impose an HFO sentence even if a
hearing had been held and [the defendant] was proven to qualify”).

                                           9
R. Crim. P. 3.800(b). Neither condition is present here. First, the record shows

that when the State returned to the trial court eight days after the original

sentencing it was not to reduce Santiago’s sentence to no more than thirty years,

but instead to attempt to prove Santiago’s status as a habitual violent felony

offender. This clearly did not benefit Santiago as required by Rule 3.800(b).

Second, the original June 30th sentence was not a scrivener’s error that could be

corrected by a Rule 3.800(b) motion. Moreover, the trial court’s order describing

the July 8th sentence as a correction due to “clerical error” does not make it so,

especially where the trial court’s own statements show that the July 8th hearing

held for the purpose of addressing Santiago’s status as a habitual violent offender.

      Because the trial court did not have jurisdiction to entertain and rule on the

State’s ore tenus motion to “correct” Santiago’s otherwise illegal sentence to

provide for a non-mandatory9 designation as a habitual violent felony offender

9 Although section 775.084(3)(a), Florida Statutes (2006), provides that “the court
shall determine if the defendant is a habitual felony offender or a habitual violent
felony offender,” the trial court is “not mandated to impose an HFO sentence.”
McMahon, 94 So. 3d at 477. See also Clines v. State, 912 So. 2d 550 (Fla. 2005)
(habitual violent felony offender recidivist category is permissive, not mandatory).
In this way, the instant case is distinguishable from Dunbar v. State, 89 So. 3d 901,
906 (Fla. 2012), in which the Supreme Court of Florida held that where the trial
court initially pronounced a sentence it had no discretion to impose, it could, later
that day and without the parties present, enter a written sentencing order to add
nondiscretionary minimum mandatory terms. Dunbar, 89 So. 3d at 906 (“When a
trial court fails to pronounce nondiscretionary sentencing terms, the defendant has
no legitimate expectation in the finality of that sentence, at least until the reviewing
court has issued a mandate or the time for filing an appeal has run.”) (emphasis
added).

                                          10
pursuant to section 775.084(1)(b), I would reverse on that basis and remand to the

trial court to vacate Santiago’s sentence, and resentence Santiago pursuant to

section 775.082(3)(b), Florida Statutes (2006).




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