Delemos v. State

• Decision Date: 28 November 2007
• Docket Number: No. 2D05-2447.,2D05-2447.
• Parties: Jorge DELEMOS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

969 So.2d 544

Jorge DELEMOS, Appellant, v. STATE of Florida, Appellee.

No. 2D05-2447.

District Court of Appeal of Florida, Second District.

November 28, 2007.

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Jorge Delemos appeals his judgment for conspiracy to traffic in cocaine (count 1), trafficking in cocaine (count 5), and possession of paraphernalia (count 7).¹ He challenges the trial court's decision to add a fifteen-year minimum mandatory term to his sentence on count 5 while resolving his motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which sought only to remove a similar minimum mandatory term from the sentence on count 1. We conclude that the trial court lacked authority to increase the sentence on count 5 when it corrected the sentence on count 1. Although the trial court's shifting of the minimum mandatory term from one sentence to the other undoubtedly seemed reasonable to that court, under existing statutes and case law the increase in the sentence for count 5 imposed after Mr. Delemos began serving that sentence violated principles of double jeopardy. We therefore reverse the amended sentence on count 5 and remand with instructions to strike the fifteen-year minimum mandatory term.

I. FACTS AND PROCEDURAL BACKGROUND

Mr. Delemos was the target of a sting operation intended to uncover drug trafficking. Originally, undercover officers purchased drugs from another individual on three separate occasions. When the officers thereafter arrested that individual, he agreed to cooperate with law enforcement and revealed Mr. Delemos as his supplier. A search of Mr. Delemos's residence revealed large quantities of cocaine.

The State charged Mr. Delemos with conspiracy to traffic in cocaine, trafficking in cocaine, and possession of paraphernalia. At trial, the State offered into evidence fourteen separate exhibits consisting of varying quantities of cocaine. Some of these quantities were the drugs found in Mr. Delemos's residence. Others were the drugs that had been seized during the transactions with the first individual arrested, drugs which the target accused Mr. Delemos of supplying.

The verdict form gave the jury only two options on count 1, conspiracy to traffic in cocaine: "guilty as charged" or "not guilty." Notably, count 1 of the amended information charged Mr. Delemos with conspiring to "traffic in 400 grams or more of cocaine, in violation of Florida Statutes 893.135(5) and 893.135(1)(b)." The jury returned a verdict of guilty as charged on count 1.

The verdict form on count 5 directed that if the jury found the defendant guilty of trafficking in cocaine, it must then decide whether the amount of the cocaine was (1) 400 grams or more, (2) between 200 and 400 grams, or (3) between 28 and 200 grams. The jury returned a verdict under subsection (1) of guilty of trafficking in cocaine in an amount in excess of 400 grams. The jury also returned a verdict of guilty as charged on count 7, a misdemeanor offense.

At sentencing, the trial judge initiated a discussion regarding whether the fifteen-year minimum mandatory sentence required by section 893.135(1)(b)(1)(c), Florida Statutes (2001), applied both to the conspiracy to traffic in cocaine charge as well as the trafficking in cocaine charge. The prosecutor argued that the minimum mandatory term would apply to both offenses. Although it is clear that the prosecutor expected the trial court to impose the minimum mandatory term on the count for trafficking in cocaine, the prosecutor did not affirmatively request the minimum mandatory sentence for the conspiracy charge and it is unclear from our transcript whether the prosecutor expected the trial judge to impose the minimum mandatory term to both counts 1 and 5.

The trial judge imposed the sentences as follows:

It'll be the judgment of the court and the sentence at law that on counts I and V, that you be adjudicated to be guilty and be sentenced to 15 years with the Department of Corrections to be followed by a period of 5 years of probation. On count I, there would be a minimum mandatory sentence of 15 years."

(Emphasis added.) The judge orally imposed a 364-day sentence on the misdemeanor charge. The court then asked, "Have I omitted anything else?" The prosecutor answered, "Court costs, I believe." Court costs were imposed and, after some brief further discussion, the hearing was concluded. There was no discussion regarding the verdict form and whether it permitted the fifteen-year minimum mandatory on count 1. In addition the State did not object to the court's failure to impose any minimum mandatory term on count 5.

The judgment and sentences were entered on May 4, 2005. Mr. Delemos filed a timely notice of appeal on May 10. The State did not file a cross-appeal. On February 1, 2007, Mr. Delemos filed a motion to correct a sentencing error pursuant to rule 3.800(b)(2).² He alleged only that the trial court erred in imposing the fifteen-year minimum mandatory term on count 1 in the absence of a jury finding that the amount of cocaine involved for that count was 400 grams or more.³ The trial court granted the motion to correct sentencing error. In a written order, the trial court directed the clerk of the circuit court to enter amended sentencing documents deleting the fifteen-year minimum mandatory term on count 1 and replacing it with a three-year minimum mandatory term as required by section 893.135(1)(b)(1)(a).⁴

The trial court, however, did not simply correct the sentence as requested by Mr. Delemos. It proceeded to add the fifteen-year minimum mandatory term it removed from count 1 onto the sentence originally imposed on count 5. In this appeal, Mr. Delemos takes issue solely with the trial court's addition of this fifteen-year minimum mandatory term to count 5, arguing that the trial court lacked the authority to increase this sentence based upon a motion to correct sentencing error challenging only the sentence on count 1.⁵ We agree that under existing Florida law, this increase in the sentence on count 5 violated double jeopardy and was improper. See Pitts v. State, 935 So.2d 634 (Fla. 2d DCA 2006); Kenny v. State, 916 So.2d 38 (Fla. 4th DCA 2005).

II. DOUBLE JEOPARDY GENERALLY

The guarantee against double jeopardy appearing in the United States and Florida Constitutions generally consists of three separate constitutional protections: It protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. See United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); see also Carawan v. State, 515 So.2d 161 (Fla.1987) (holding that the scope of the double jeopardy clause of the Florida Constitution is the same as that of the federal constitution), superseded by statute on other grounds as recognized in State v. Smith, 547 So.2d 613, 614 (Fla.1989). Here, we are concerned with the last of these protections— the prohibition against multiple punishments for the same offense. The rationale behind this prohibition has been explained thus:

For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offence? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value?

Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873).

The protections of the double jeopardy clause are tied in large part to a "public interest in the finality of criminal judgments." See DiFrancesco, 449 U.S. at 129, 101 S.Ct. 426 (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). As a result, the analysis of double jeopardy as a limitation upon resentencing for an offense depends in large part upon the level or degree of finality accorded to the original sentence when it was first imposed. DiFrancesco, 449 U.S. at 134-35, 101 S.Ct. 426.

Under federal law, Congress has constitutionally provided the government with explicit statutory authority to appeal sentences in criminal cases. As a result, in federal courts the finality of a sentence based simply upon its oral pronouncement is relatively limited. Id. at 131, 101 S.Ct. 426. Federal courts are thus often permitted to correct a sentence to increase its term, at least during the appellate process, without running afoul of double jeopardy protections. See id.; Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). In that context, the Supreme Court has emphasized, "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Bozza, 330 U.S. at 166-67, 67 S.Ct. 645.

For better or worse, not all states limit the finality of sentences upon oral pronouncement in the same manner that federal law does. Because the extent of the protection against double jeopardy hinges upon the finality of the sentence, double jeopardy can provide greater rights to a defendant in a state court if the state law accords a level of finality to a sentence that federal law does not. See Pennsylvania v. Goldhammer, 474 U.S. 28,...