Gonzalez v. State, 3D14–2986.
| Decision Date | 13 October 2016 |
| Docket Number | No. 3D14–2986.,3D14–2986. |
| Citation | 208 So.3d 143 |
| Parties | Mario GONZALEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mario Gonzalez, in proper person.
Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
Before SUAREZ, C.J., and LAGOA, and SCALES, JJ.
Mario Gonzalez ("Gonzalez") appeals from the trial court's order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800 and from the trial court's subsequent order denying his motion for rehearing. Because Gonzalez's claim of a double jeopardy violation was not successive, we reverse with directions for the trial court to consider the double jeopardy claim on the merits.
On June 28, 2000, Gonzalez entered into a global plea to resolve eleven different cases pending against him involving charges of burglary, robbery, and grand theft. In case number 99–1668, on a charge of strong-arm robbery, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as a habitual violent offender ("HVO") and to a concurrent fifteen year minimum mandatory sentence as a prison releasee reoffender ("PRR").
In case number 99–993, Gonzalez was sentenced on two counts—count I (burglary of an unoccupied dwelling), and count II (grand theft). As to count I, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as an HVO, and a minimum mandatory sentence of fifteen years as a PRR. This sentence was concurrent to Gonzalez's other sentences under the global plea. As to count II, Gonzalez was sentenced to five years as a HVO and a PRR. The sentence under Count II stated that it was "CONSECUTIVE TO ALL OTHER SENTENCES ON ALL OTHER CHARGES IN ALL OTHER CASES, including the thirty year sentence on the burglary charge in F99–993. "
In the remaining nine cases, in which the charges were all robbery, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as a HVO, and to a minimum mandatory sentence of fifteen years as a PRR. These sentences were concurrent to Gonzalez's other sentences with the exception of the five year sentence on the charge of grand theft (Count II) in case number 99–993.
On July 30, 2001, Gonzalez filed his first motion to correct illegal sentence in case number 99–993. He made several assertions: 1) the Prison Release Reoffender Act (the "PRR Act") is not applicable to convictions for burglary of an unoccupied dwelling and for grand theft; 2) concurrent five-year sentences as a PRR and as an HVO for the single offense of grand theft violated the PRR Act and the trial court lacked authority to sentence a defendant to an equal sentence under the HVO statute; and 3) relying on Hale v. State, 630 So.2d 521 (Fla.1993), consecutive habitual offender sentences were improperly imposed, given that the burglary and grand theft offenses arose out of single episode. The trial court entered an order deleting Gonzalez's PRR status and the minimum mandatory term for a PRR on count I (burglary of an unoccupied dwelling), but did not change Gonzalez's status or his sentence for count II (grand theft).
Gonzalez subsequently appealed to this Court. See Gonzalez v. State, 854 So.2d 847 (Fla. 3d DCA 2003) ("Gonzalez I "). His initial brief included his argument under Hale, but Gonzalez subsequently filed an amended initial brief withdrawing that argument. In Gonzalez I, this Court concluded that the trial court intended to strike the PRR designation and the minimum mandatory sentences on both count I and count II, and "reversed and remanded for deletion of the PRR sentence and concomitant minimum mandatory term as to Count II." Id. at 848.
(emphasis added). The 2003 amended sentencing order, however, is not part of the record before this Court.
On March 1, 2013, Gonzalez filed his second motion to correct illegal sentence regarding case number 99–993. The trial court entered an order partially granting and partially denying this second motion to correct illegal sentence:
As to case number 99–993, the Clerk of the Court is hereby directed to prepare amended sentencing document that delete any reference to the defendant being sentenced as a prison release reoffender. The amended sentence should specify that the defendant is sentenced as a habitual violent felony offender to 30 years on count I, with a 10 year minimum mandatory sentence and as to Count II is sentenced to a consecutive 5 years in prison as a habitual violent felony offender. These sentences are to run concurrent with any other sentences the defendant is serving. As to all other cases, the defendant's Motion is denied.
(emphasis added).
On May 21, 2013, the trial court, effectuating its earlier ruling on Gonzalez's motion, entered an order correcting Gonzalez's sentence in case number 99–993 as follows:
THE SENTENCE AS TO COUNT 2 RUNS CONSECUTIVE TO THE SENTENCE SET FORTH AS TO COUNT 1 IN THE ABOVE STYLED CAUSE. FURTHER, THE SENTENCES IN THE ABOVE STYLED CAUSE RUNS CONCURRENT WITH OTHER SENTENCES THE DEFENDANT IS SERVING.
(emphasis added).
Gonzalez appealed to this Court, but did not submit an initial brief. This Court affirmed the trial court. See Gonzalez v. State, 129 So.3d 1077 (Fla. 3d DCA 2013) (table) ("Gonzalez II ").
Gonzalez subsequently filed a motion for rehearing before this Court, raising an argument not presented to the trial court in his second motion to correct illegal sentence—that the trial court's order of May 21, 2013, "resulted in a violation of Gonzalez's Constitutional right against double jeopardy, when the court ran count II of case number F99–993 consecutive to count I of that case." Acknowledging the limited scope of argument permitted in a motion for rehearing and claiming a constitutional violation for the first time on rehearing is generally impermissible, Gonzalez explained that on August 28, 2013, one week after this Court's affirmance in Gonzalez II, he received an "Interoffice Memorandum" from a correctional sentence specialist with the Department of Corrections, stating that his temporary release date had changed from September 25, 2025, to April 4, 2029, based upon the lower court's May 21, 2013 order. Gonzalez attached a copy of the letter to his motion for rehearing.
In his motion for rehearing, Gonzalez argued that the lower court "violated his Fifth Amendment right against double jeopardy when it amended his sentence on May 21, 2013, to run count II of case number F99–993 consecutive to count I of that case, where the court had previously amended his sentence in 2003 that ran count II ‘concurrent’ with both count I and all other counts and cases." For the first time, Gonzalez explained that he was informed of the 2003 amended sentencing order in a November 19, 2003, letter from his then-appellate counsel, and that he was never furnished with a copy of the 2003 amended sentencing order. Gonzalez attached a copy of the letter to his motion for rehearing. The letter from Gonzalez's attorney states that on October 28, 2003, the trial court vacated Gonzalez's previous sentence on count II in case number 99–993, and entered a new sentence of five years as an HVO. The letter also states that the sentence is concurrent with the sentence on count I, and concurrent with all of the other sentences he is serving.
On December 24, 2013, this Court denied Gonzalez's motion for rehearing, in an unelaborated order.
On August 8, 2014, Gonzalez filed the instant motion to correct illegal sentence. Gonzalez made two assertions: 1) his constitutional right against double jeopardy was violated when the court amended his sentence running count I of case number 99–993 consecutive to count II, where these two counts had previously been run concurrent with one another and with all other cases, thereby resulting in an illegal sentence; and 2) relying on Grant v. State, 770 So.2d 655 (Fla.2000), that his HVO sentences are illegal because all imposed mandatory minimum terms which were shorter than the PRR sentences.
On September 30, 2014, the trial court denied the motion, stating that "[t]he defendant's claim was denied on direct appeal, and is successive in nature."1 Gonzalez filed a motion for rehearing, arguing that his double jeopardy claim was not successive because it was first raised in his motion for rehearing in Gonzalez II, which was not a procedurally proper method by which to raise the issue, and that this Court denied that motion for rehearing without addressing the merits. Gonzalez also asserted an issue not raised in his underlying motion—that pursuant to Hale, 630 So.2d at 521, "where crimes occur in a single criminal episode and one or both counts have been increased by HO enhancement, it is a manifest injustice to impose the sentences to run consecutively."
On November 14, 2014, the trial court denied Gonzalez's motion for rehearing, and granted his motion for belated appeal of the order denying his motion to correct illegal sentence entered on September 30, 2014. Gonzalez filed the present appeal, and filed an initial brief.
Gonzalez's sole argument on appeal is that the trial court erred in denying ground one of his motion to correct illegal sentence as successive in nature, i.e., his double jeopardy claim.2 Because the record does not conclusively establish that Gonzalez's double jeopardy claim has been previously decided on the merits,...
To continue reading
Request your trial
- Quinn v. CP Franchising, LLC
-
Hernandez v. State, 3D16–1702
...offender designation, and by correctly designating the defendant as a habitual felony offender in those cases. Gonzalez v. State , 208 So.3d 143, 147 (Fla. 3d DCA 2016) ("Because the record does not conclusively establish that Gonzalez's double jeopardy claim has been previously decided on ......