FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3173
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JOHANNA L. KLINGLER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.
October 15, 2018
PER CURIAM.
In this Anders 1 appeal, we affirm Appellant’s judgment and
sentence in all respects except one as discussed below.
On October 28, 2016, shortly after 1:00 a.m., Appellant was
driving southbound in the northbound travel lanes of US
Highway 441 when she crashed into a car that was traveling
northbound. The crash killed two people, including a 4-year-old
girl, and seriously injured two others. Appellant was intoxicated
and driving 20-28 miles per hour over the speed limit at the time
of the crash.
1 Anders v. California,
386 U.S. 738 (1967).
Appellant was charged with two counts of DUI manslaughter
(counts I and II), two counts of DUI with serious bodily injury
(counts III and IV), and one count of child neglect with great
bodily harm (count V). She pled no contest to the charges, and as
part of the plea, the State agreed to a sentencing cap of 40 years
in prison. At the sentencing hearing, the trial court rejected
Appellant’s argument for a downward departure sentence and
sentenced her to a total of 29 years in prison followed by 11 years
of probation. 2 The overall sentence was legal, as was the
individual sentence for count V.
Several hours after the sentencing hearing ended, after
consulting with defense counsel and the prosecutor by email, the
trial court modified the sentence for count V from 11 years of
probation to 15 years in prison to be served concurrent with the
prison sentences on the other counts. The modification had no
impact on Appellant’s total sentence—which remained 29 years
in prison followed by 11 years on probation—and defense counsel
agreed to the change because it meant that Appellant’s probation
would run on only one count. 3
On appeal, after her appointed counsel filed an Anders brief,
Appellant filed a pro se brief arguing that (1) the trial court
violated her constitutional rights by modifying her sentence in
her absence, and (2) defense counsel was ineffective in failing to
withdraw her plea and inform her of the amended sentence. The
2 The sentence was structured as follows: 5 years in prison
on count III, followed by 5 years in prison on count IV, followed
by 15 years in prison on count II, followed by 4 years in prison
and 11 years of probation on count I, with a concurrent 11 years
of probation on count V.
3 The amended sentence significantly reduced Appellant’s
potential sentencing exposure upon a violation of probation.
Under Appellant’s original sentence, if she violated probation,
she would be facing a total of 30 years in prison (15 years on
count I and 15 years on count V) less the prison time she had
served on count I. By contrast, under the amended sentence,
Appellant would be facing only 15 years of prison on count I less
any prison time she had served on that count.
2
second issue is meritless, but because the first issue appeared to
have potential merit, we issued a Causey 4 order directing
appointed counsel to file a supplemental brief “addressing
whether the trial court violated Appellant’s double jeopardy
rights by exercising discretion and resentencing her to 15 years’
imprisonment on Count V . . . several hours after imposing the
original sentence of 11 years’ probation, without her presence in
the courtroom, and whether this necessitates resentencing with
Appellant present.”
The supplemental brief argued that the trial court violated
Appellant’s double jeopardy rights when it increased her original
legal sentence on count V after the sentencing hearing ended and
she began serving her sentence, but the brief also noted that the
amended sentence on that count did not change the overall
sentence and benefitted Appellant. The State argued in its
answer brief that Appellant waived any double jeopardy claim
because her sentence was the result of a negotiated plea that
capped her prison sentence at 40 years.
We reject the State’s waiver argument because the double
jeopardy claim at issue in this case is not the type of claim that is
deemed waived when the defendant enters a negotiated plea. Cf.
Novaton v. State,
634 So. 2d 607, 609 (Fla. 1994) (holding that a
negotiated plea waives a claim that double jeopardy bars dual
convictions for the offenses to which the defendant pled). On the
merits, we agree with the argument in the supplemental brief
that the trial court violated Appellant’s double jeopardy rights
when it increased her original legal sentence on count V after the
sentencing hearing ended. See Ashley v. State,
850 So. 2d 1265,
1267 (Fla. 2003) (“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.”);
Shepard v. State,
940 So. 2d 545, 548 (Fla. 5th DCA 2006) (“[T]he
trial court’s pronouncement becomes final when the sentencing
hearing ends.”); cf. Dunbar v. State,
89 So. 3d 901, 906-07 (Fla.
2012) (holding that double jeopardy is not violated when the trial
court adds nondiscretionary mandatory minimum terms to a
4 State v. Causey,
503 So. 2d 321 (Fla. 1987).
3
sentence after the sentencing hearing because the defendant does
not have a legitimate expectation of finality in an illegal
sentence). The remedy for the double jeopardy violation in this
case is reinstatement of the original sentence, not a resentencing
hearing. See Hobgood v. State,
166 So. 3d 840, 847 (Fla. 4th DCA
2015).
Accordingly, we reverse the 15-year prison sentence on count
V and remand for entry of an amended judgment and sentence
reinstating the original 11-year probationary sentence on that
count. Appellant need not be present for this ministerial act. See
Story v. State,
174 So. 3d 1109, 1111 (Fla. 2d DCA 2015); Charles
v. State,
59 So. 3d 291, 293 (Fla. 3d DCA 2011). Appellant’s
judgment and sentence is affirmed in all other respects.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
WETHERELL, BILBREY, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant; Johanna L. Klingler,
pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
4
