Dunbar v. State, SC10–2296.

• Court: United States State Supreme Court of Florida
• Writing for the Court: POLSTON
• Citation: 89 So.3d 901
• Parties: Andre Isaiah DUNBAR, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. SC10–2296.,SC10–2296.
• Decision Date: 03 May 2012

89 So.3d 901

Andre Isaiah DUNBAR, Petitioner,
v.
STATE of Florida, Respondent.

No. SC10–2296.

Supreme Court of Florida.

May 3, 2012.

[89 So.3d 902]

James S. Purdy, Public Defender, and David Stewart Morgan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Ann M. Phillips and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

POLSTON, J.

Andre Isaiah Dunbar seeks review of the decision of the Fifth District Court of Appeal in Dunbar v. State, 46 So.3d 81 (Fla. 5th DCA 2010) (en banc), on the

[89 So.3d 903]

ground that it expressly and directly conflicts with a decision of another district court of appeal, Gardner v. State, 30 So.3d 629 (Fla. 2d DCA 2010), on a question of law.¹ For the reasons that follow, we approve of the Fifth District's double jeopardy analysis but remand for resentencing with Dunbar present.

I. BACKGROUND

Following a jury trial in 2009, Andre Isaiah Dunbar was found guilty of robbery with a firearm, two counts of aggravated assault with a firearm, and grand theft. Dunbar, 46 So.3d at 82. The jury made special findings that Dunbar actually possessed the firearm in committing the robbery and in both instances of aggravated assault.

At sentencing, the trial court orally pronounced a life sentence for robbery with a firearm. However, the trial court failed to include in its oral pronouncement the ten-year mandatory minimum sentence for robbery with a firearm required by section 775.087(2), Florida Statutes (2008). 46 So.3d at 82–83. Later that day and without the parties present, the trial court entered a written sentencing order including the mandatory minimum term. See id. at 82.

On appeal to the Fifth District, Dunbar argued that the mandatory minimum term must be stricken from the written sentence because it did not conform to the sentence as orally rendered. Id. In affirming Dunbar's written sentence, the Fifth District reasoned that, because “imposition of a mandatory minimum sentence under section 775.087(2) ... is a nondiscretionary duty of a trial court when the record indicates that the defendant qualifies for mandatory minimum sentencing,” the oral sentence in Dunbar's case was properly subject to the trial court's correction. Id.

Furthermore, the Fifth District in Dunbar explained that, because the original sentence was invalid, double jeopardy principles were not implicated by the later addition of harsher terms. Id. at 83. In reaching its conclusion that there was no double jeopardy violation, the Fifth District reaffirmed the law as set forth in a prior decision, Allen v. State, 853 So.2d 533, 535 (Fla. 5th DCA 2003), where it held that a similar correction did not violate double jeopardy protections because the original sentence was “illegal” and “subject to correction” under Florida Rule of Criminal Procedure 3.800(a) “at any time.”

In contrast to the Fifth District's decision in Dunbar, the Second District in Gardner, 30 So.3d at 632, held that double jeopardy considerations precluded the later addition of a ten-year mandatory minimum term, even where the trial court had no discretion to withhold the term. In Gardner, the trial court originally failed to orally pronounce the term required by section 775.087(2), then recalled Gardner after the prosecution belatedly objected to the mistake. Id. at 630–31. When Gardner had been returned to the courtroom, the trial court orally pronounced the correct sentence, including the mandatory minimum term. Id. at 631.

On appeal to the Second District, Gardner sought reversal of the sentence ultimately imposed, arguing that correction of his original sentence violated double jeopardy principles. Id. at 630. The Second District acknowledged that the original sentence was “apparently erroneous” but still agreed with Gardner that the trial court “had no authority to reopen the proceedings once the hearing had concluded and double jeopardy had attached” because

[89 So.3d 904]

“Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence.” Id. at 632 (quoting Delemos v. State, 969 So.2d 544, 548 (Fla. 2d DCA 2007)).

Judge Altenbernd dissented from the Second District's decision in Gardner, reasoning as follows:

In Delemos v. State, 969 So.2d 544 (Fla. 2d DCA 2007), I suggested that the Florida law on the issue of when a sentence becomes final for purposes of double jeopardy may be overly restrictive and that the U.S. Constitution may permit a longer window of time in which courts could correct errors made during oral pronouncement. I continue to believe that our case law does not reflect the extent to which simple human error is inevitable in oral pronouncements and that the constitutional doctrine of double jeopardy was never intended to make sentencing a game in which mental errors by judges and attorneys are irreparable even when the error is discovered minutes later. See United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166–67, 67 S.Ct. 645, 91 L.Ed. 818 (1947), for the principle that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner”).

....

So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. When a judge inadvertently imposes a fifteen-year sentence on a third-degree felony and a five-year sentence on a second-degree felony, for example, I do not understand why constitutional double jeopardy should bar the judge from imposing the intended fifteen-year sentence for the second-degree felony even a few days after the mistake in the oral pronouncement.

A defendant has a right to a legal sentence. This defendant is about to receive the benefit of an illegal sentence, in all likelihood because a judge and several lawyers were anxious to go to lunch. Somehow, Florida's technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal sentences, but to sentences that are often more like half jeopardy.

Gardner, 30 So.3d at 634–35 (Altenbernd, J., dissenting).

II. ANALYSIS A. Double Jeopardy

Dunbar argues that the later addition of a mandatory minimum term violated his double jeopardy rights under both the federal and state constitutions because he was subjected to multiple punishments for the same offense.² We disagree.³

As it relates to barring multiple punishments for the same offense in the noncapital sentencing context,

[89 So.3d 905]

the application of the double jeopardy clause ... turns on the extent and legitimacy of a defendant's expectation of finality in that sentence. If a defendant has a legitimate expectation of finality, then an increase in that sentence is prohibited by the double jeopardy clause. If, however, there is some circumstance which undermines the legitimacy of that expectation, then a court may permissibly increase the sentence.

United States v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987). In other words, the later imposition of more onerous terms “violates the double jeopardy clause only when it disrupts the defendant's legitimate expectations of finality.” United States v. Young, 953 F.2d 1288, 1291 n. 3 (11th Cir.1992); see Goene v. State, 577 So.2d 1306, 1309 (Fla.1991) (“Goene therefore had no legitimate expectation of finality in the sentence originally imposed and there...