        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        AMANDA LEE HOBGOOD,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-1395

                              [April 22, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562010CF003550A.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

                      ON MOTION FOR REHEARING

LEVINE, J.

   We grant appellant’s motion for rehearing, withdraw our previously
issued opinion, and replace it with the following.

   Appellant appeals her 55.2-month prison sentence and the imposition
of costs of incarceration for her conviction of attempted robbery with a
weapon. Appellant claims that the trial court violated double jeopardy by
recalling her case to resentence her to a longer term after it orally imposed
a 48-month sentence and concluded the sentencing hearing. We agree,
and reverse and remand with instructions for the trial court to resentence
appellant according to the original pronouncement. As to the costs of
incarceration issue, we find the trial court did not err and we affirm.

   Appellant appeared before the trial court to change her plea to no
contest to one count of attempted robbery with a weapon. The court
apprised appellant that the maximum penalty would be fifteen years, and
the state noted that appellant scored “55.2 months prison.” The parties
agreed that there was no “minimum mandatory.” The court also advised
appellant that sentencing would be “entirely up to the court” and that
there was no agreement between the state and appellant regarding a
recommended sentence. The prosecutor presented a factual basis for the
charges, and the trial court accepted appellant’s no contest plea.

   Subsequently, the trial court held a sentencing hearing, where it noted
that the “lowest permissible prison sentence” was 55.2 months. Appellant
requested a sentence of five years concurrent to an unrelated sentence she
was already serving, and the state requested ten years consecutive to the
unrelated sentence.

   The trial court adjudicated appellant guilty and sentenced her to “four
years” or 48 months to run consecutive to the unrelated sentence. The
state did not object, and proceeded to move for appellant to pay costs of
incarceration. The trial court asked appellant if she had “any legal
objection” and appellant said, “No sir.” The court advised appellant that
she would be fingerprinted and “remanded to the sheriff.” At that point
the proceedings concluded.

   At some time later that same day,1 the trial court granted the state’s
request to recall the case. The state pointed out that “there were no
findings of why the sentence is below guidelines.” The trial court stated
that it “overlooked the fact that there was a lowest permissible [sentence]
of 55.2 [months].” Defense counsel told the court she did not know if the
court could “enhance after already rendering sentence.” The trial court
then stated it wanted the record to reflect that:

      [Appellant] was fingerprinted in open court, she was sent to
      the holding cell, I believe she was taken downstairs to the
      courthouse and then brought back up. Uh, I will be very
      candid, it was error on my part I had overlooked the fact that
      it was a 55.2 minimum, uh, so I guess the question is what is
      the authority of the court now?

    The state argued that “right now she has an illegal sentence. So I mean
if she gets shipped off to DOC, we’re just going to file an appeal, you know,
without written findings of a downward departure, right now we’re dealing
with an illegal sentence.” Defense counsel stated she could not argue for

1 The hearing ended and the transcript reveals “(Off record – record resumes),”
without any indication as to the time that passed between the record ending and
resuming, nor whether other proceedings took place in between.

                                      2
the court “to increase – sentencing after imposing it.” The trial court stated
it understood and proceeded to sentence appellant:

      I’m going to go ahead and impose the lowest permissible
      prison sentence. Whether that turns out to be an error on my
      part, we’ll find out I suppose. But it was not my intention to
      enter a departure sentence, I did not realize it was a departure
      sentence when I imposed it. If the appellate court determines
      that sentencing had been concluded and I cannot increase the
      sentencing, so be it, but I’m going to now, uh, sentence her to
      55.2 months in Department of Corrections in this case, again,
      consecutive to the [unrelated sentence].

   Appellant moved to correct sentence, arguing that the increased
sentence violated double jeopardy. The trial court denied appellant’s
motion, and this appeal ensued.

   The Legality of Appellant’s Initial Sentence

   “The standard of review for the legality of a criminal sentence is de
novo.” State v. Valera, 75 So. 3d 330, 331-32 (Fla. 4th DCA 2011).

    The state argued at trial and argues now on appeal that appellant’s
original 48-month sentence was “illegal,” because it fell below the Criminal
Punishment Code Scoresheet’s “lowest permissible sentence.” Appellant
did not move for a downward departure, and the trial court did not make
“either written or oral findings” justifying a departure. Thus, the state
asserts the 48-month sentence was an illegal sentence because it was an
improper downward departure, and imposition of the 55.2-month
sentence did not violate double jeopardy. See Plute v. State, 835 So. 2d
368, 369 (Fla. 2d DCA 2003) (“It is well established that a harsher sentence
may be imposed on resentencing in such a context [i.e., where the
defendant’s original sentence was illegal] without violating double
jeopardy.”); State v. Swider, 799 So. 2d 388, 391 (Fla. 4th DCA 2001) (“A
trial court may vacate an illegal sentence and impose a harsher sentence
without violating the defendant’s double jeopardy rights.”).

   The Florida Supreme Court defines an “illegal sentence” as “one that
imposes a punishment or penalty that no judge under the entire body of
sentencing statutes and laws could impose under any set of factual
circumstances.” State v. Akins, 69 So. 3d 261, 268-69 (Fla. 2011) (citation
omitted). This definition provides that “if it is possible under all the
sentencing statutes-given a specific set of facts-to impose a particular
sentence, then the sentence will not be illegal within rule 3.800(a) even

                                      3
though the judge erred in imposing it.” Carter v. State, 786 So. 2d 1173,
1178 (Fla. 2001) (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th
DCA 1999)). In Blakley, this court discerned a “very short list of sentences
that can be deemed illegal,” including: “(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.” Id. at 1185-86. The
supreme court has also “previously rejected, [] the contention that the
failure to file written findings for a departure sentence constitutes an
illegal sentence.” Davis v. State, 661 So. 2d 1193, 1196 (Fla. 1995),
disapproved of on other grounds by Mack v. State, 823 So. 2d 746, 748-49
(Fla. 2002). See also Gartrell v. State, 626 So. 2d 1364, 1364 (Fla. 1993)
(holding that “a sentence to less than the guidelines range without written
reasons” is not an “illegal sentence” within the meaning of Florida Rule of
Criminal Procedure 3.800(a)).

   The Criminal Punishment Code defines the “lowest permissible
sentence” as the “the minimum sentence that may be imposed by the trial
court, absent a valid reason for departure.” § 921.0024(2), Fla. Stat.
(2013) (emphasis added). The Code allows for imposition of sentences that
are less than the “lowest permissible sentence.” See id.; see also §
921.002(1)(f), Fla. Stat. (2013) (“Departures below the lowest permissible
sentence established by the code must be articulated in writing by the trial
court judge and made only when circumstances or factors reasonably
justify the mitigation of the sentence.”).

    In the instant case, the court calculated the “lowest permissible
sentence” to be 55.2 months. A sentence of 48 months would have been
permissible under the Code as a downward departure, assuming all other
requirements for such departure were met. See id. Thus, the 48-month
sentence is not “illegal,” because it is not “one that imposes a punishment
[] that no judge under the entire body of sentencing statutes and laws
could impose under any set of factual circumstances.” Akins, 69 So. 3d
at 268-69. Rather, the 48-month sentence would have been legal “even
though the judge erred in imposing it,” because it would have been
possible under “the sentencing statutes-given a specific set of facts” to
impose it. Carter, 786 So. 2d at 1178 (citation omitted).

    The cases cited by the state in arguing that the 48-month sentence was
illegal are distinguishable, because the “lowest permissible sentence” here
was not “nondiscretionary” or a “minimum mandatory penalty,” unlike the
“illegal” sentences in the cited cases. Cf. Dunbar v. State, 89 So. 3d 901,
904, 906-07 (Fla. 2012) (holding that “the trial court did not violate double
jeopardy principles by adding” a “nondiscretionary mandatory minimum

                                     4
term” later in its written sentencing order after the sentencing hearing was
over and “without the parties present,” because “[t]he trial court initially
pronounced a sentence it had no discretion to impose” by not including
the term in its oral pronouncement); Curtis v. State, 789 So. 2d 394 (Fla.
4th DCA 2001) (affirming the imposition of a more onerous sentence where
the trial court initially sentenced the defendant under sentencing
guidelines from the wrong year, thereby making the initial sentence
illegal). In the present case, because the initial sentence fell within the
trial court’s discretion, it was legally permissible.2

    Double Jeopardy Analysis of the Initial Sentence

   “A double jeopardy claim based upon undisputed facts presents a pure
question of law and is reviewed de novo.” Dunbar, 89 So. 3d at 904 n.3
(quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)). “A defendant
must preserve a sentencing error by objecting at the time of sentencing or
in a motion under Florida Rule of Criminal Procedure 3.800(b).”
Whitehead v. State, 21 So. 3d 157, 160 (Fla. 4th DCA 2009) (citing Fla. R.
App. P. 9.140(e)). Here, appellant preserved the error by filing a rule
3.800(b) motion.

    “A sentence can be changed if it is done at the same sentencing hearing,
before the defendant has commenced serving his sentence.” Id. Thus,
“[u]ntil the sentencing hearing comes to an end, ‘the trial court has
jurisdiction to modify, vacate, correct, change, amend, alter or vary,
increase or decrease, any earlier, in effect inchoate, pronouncement.’” Id.
at 161 (quoting Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982)).
“When a defendant has not been transferred from the court’s custody to a
place of detention at the time his sentences are altered, service of the
sentences has not officially commenced, and defendant’s rights are not
impinged by the trial court’s timely alteration of his sentences.” Id.
(citation omitted). “The question then becomes whether the sentencing


2 The state alternatively argues that it would have had the ability to appeal the
48-month sentence, because it fell below the lowest permissible sentence without
valid, written reasons for downward departure. See § 921.002(1)(h), Fla. Stat.
(2013) (“A sentence may be appealed on the basis that it departs from the
Criminal Punishment Code only if the sentence is below the lowest permissible
sentence.”). However, the state failed to object to the trial court’s oral
pronouncement of 48 months, thereby failing to preserve the error and precluding
it from a successful appeal. See State v. Dort, 929 So. 2d 1190, 1190-91 (Fla. 4th
DCA 2006) (affirming “the circuit court’s imposition of a downward departure
sentence without providing written reasons or engaging in the proper
analysis . . . because the state failed to preserve the issue in the trial court”).

                                        5
hearing had concluded and the defendant had begun serving his
sentence.” Id.

    In Troupe v. Rowe, 283 So. 2d 857 (Fla. 1973), the trial court accepted
defendant’s guilty plea and announced it would issue a “finding” of guilt
rather than an “adjudication,” over the state’s objection. The record
revealed that “a recess was taken, during which time other court
proceedings were had, following which the hearing resumed . . . with a
second assistant state attorney appearing before the court” reiterating “the
State’s vehement objection.” Id. at 858. After some discussion, the court
ultimately set aside the previously announced ruling and sentence and set
the case for a new trial date. Id. at 859. On appeal, the Florida Supreme
Court held that “[j]eopardy had attached in petitioner’s case and the
sentence which had been imposed could not thereafter be increased . . . in
violation of defendant’s constitutional guaranty not to be twice placed in
jeopardy.” Id. at 860. The supreme court “remanded for reinstatement of
the trial judge’s original sentences upon the pleas of guilty on the two
offenses charged.” Id.

    Likewise, in Obara v. State, 958 So. 2d 1019 (Fla. 5th DCA 2007), the
trial court imposed a prison term consistent with a plea agreement. The
defendant “was immediately taken into custody and removed from the
courtroom to a nearby holding cell where he was searched.” Id. at 1021.
After the search revealed two small bags of marijuana in the defendant’s
shoes, the court recalled him to the courtroom “about ten minutes later.”
Id. The court found the defendant violated the conditions of the plea
agreement by possessing marijuana during the sentencing hearing and
imposed a harsher sentence. On appeal, the state argued that the
defendant “had not begun to serve his sentence, as he had not yet been
transferred from the court’s custody.” Id. The Fifth District, relying upon
Troupe, 283 So. 2d 857, concluded that the trial court’s actions violated
double jeopardy and reversed and remanded for resentencing consistent
with the original plea agreement. See also Shepard v. State, 940 So. 2d
545, 546-48 (Fla. 5th DCA 2006) (holding that the trial court violated
double jeopardy when it orally pronounced one of defendant’s sentences
as “concurrent” to others, but approximately fifty minutes later, recalled
the parties and ordered all sentences be “consecutive” as intended,
because the hearing had concluded, and the “originally pronounced
sentence was neither ambiguous nor illegal”).

    In Whitehead, after orally pronouncing a sentence, the trial court
“learned for the first time that there were pending charges [against
defendant] . . . for unlawful sex acts with a minor.” 21 So. 3d at 159. The
trial judge continued the hearing, withdrew the prior sentence, and

                                     6
imposed a more onerous sentence in light of the other pending charges.
On appeal, this court affirmed the more onerous sentence, finding that the
trial court did not run afoul of defendant’s protection against double
jeopardy. This court specifically noted that “the defendant had not been
fingerprinted, had not left the courtroom, and had not begun to serve his
sentence when the trial court continued the sentencing hearing for a few
minutes to obtain additional information.” Id. at 161. Thus, this court
found jeopardy had not yet attached.

    The facts in the instant case support a determination that appellant
had begun serving her sentence and jeopardy had attached. The trial
court orally imposed a 48-month sentence, and the state did not object.
The “originally pronounced sentence was neither ambiguous nor illegal,”
as it would have been a legally permissible downward departure. Shepard,
940 So. 2d at 547. The trial court did not indicate that the hearing was
being continued nor that the case would be recalled. Cf. Whitehead, 21
So. 3d at 161. Rather, the transcript reveals that the court engaged in
formalities indicating that the hearing was concluded and the record
ended. Appellant “was immediately taken into custody and removed from
the courtroom to a nearby holding cell” after being fingerprinted. Obara,
958 So. 2d at 1021; cf. Whitehead, 21 So. 3d at 161 (finding that jeopardy
did not attach where “the defendant had not been fingerprinted” and “had
not left the courtroom”); Curtis, 789 So. 2d at 395 (finding that jeopardy
did not attach even though “appellant had left the courtroom,” because
the trial court initially “rendered an illegal sentence” by sentencing
appellant under incorrect guidelines). The trial court acknowledged what
occurred before bringing appellant “back up” from the downstairs holding
cell, and then it imposed the more onerous 55.2-month sentence. Under
these facts, where the trial court did not initially impose an illegal
sentence, we find that jeopardy attached and appellant had begun serving
the initial sentence after the hearing concluded and she was fingerprinted,
removed from the courtroom, and placed in a holding cell.

   In summary, jeopardy attached to appellant’s initial 48-month sentence
after the court concluded the hearing, and appellant was removed from
the courtroom and taken to a holding cell. Thus, the trial court violated
appellant’s right against double jeopardy by recalling her case and
resentencing her to a more onerous term of incarceration where the initial
sentence was not illegal. We reverse and remand for reinstatement of the
48-month sentence consecutive to the sentence appellant was serving on
the unrelated case.

   Affirmed in part, reversed in part, and remanded with directions.


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GROSS and TAYLOR, JJ., concur.

                          *      *   *




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