Johanna L. Klingler v. State of Florida , 257 So. 3d 571 ( 2018 )


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  •             FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-3173
    _____________________________
    JOHANNA L. KLINGLER,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    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.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    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
    

Document Info

Docket Number: 17-3173

Citation Numbers: 257 So. 3d 571

Filed Date: 10/15/2018

Precedential Status: Precedential

Modified Date: 10/15/2018