Santiago v. State , 2014 Fla. App. LEXIS 14103 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed September 10, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D09-2044
Lower Tribunal No. 06-33761-B
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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.
3
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).
11