Adam Odom v. State of Florida ( 2016 )

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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