Hawkins v. State

• Decision Date: 23 May 2014
• Docket Number: No. 2D12–5325.,2D12–5325.
• Citation: 138 So.3d 1196
• Parties: James A. HAWKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

138 So.3d 1196

James A. HAWKINS, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–5325.

District Court of Appeal of Florida,

Second District.

May 23, 2014.

Howard L. “Rex” Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

James A. Hawkins appeals his judgments and sentences imposed in five separate cases following his negotiated pleas of no contest. Because the circuit court erred in ruling that Mr. Hawkins willfully violated his furlough agreement by failing to appear for sentencing on account of an arrest in another county, we reverse the sentences imposed and remand for resentencing in accordance with the plea agreement.

I. THE FACTS AND PROCEDURAL BACKGROUND

Initially, the State charged Mr. Hawkins in three separate informations with the offense of uttering a forged instrument. Mr. Hawkins allegedly committed the three offenses in July 2011. Later, the State filed two separate informations charging Mr. Hawkins with the failure to appear for pretrial conferences on December 2, 2011. The offenses in the two informations for failure to appear overlapped. One information charged Mr. Hawkins with the failure to appear on December 2, 2011, in two of the uttering cases. The other information charged Mr. Hawkins with the failure to appear on the same day in all three of the uttering cases.¹

On February 3, 2012, Mr. Hawkins entered negotiated pleas of no contest to the three counts of uttering a forged instrument and the two counts of failing to appear as charged in the five informations. The pleas were entered with the understanding that Mr. Hawkins would be sentenced on each of the five charges to one year in the county jail. The sentences were to run concurrently. In addition, Mr. Hawkins agreed to pay restitution to the victims on the uttering charges. As part of the plea bargain, Mr. Hawkins was to be furloughed for six weeks to give him an opportunity to raise the money to pay the required restitution. If he paid the restitution amounts due before sentencing, then the sentences were to be for time served only. When Mr. Hawkins entered his plea, the circuit court informed him that if he failed to appear for sentencing as scheduled or was arrested on a new charge, he would be facing sentences totaling twenty-five years in the state prison.

During his furlough, Mr. Hawkins was arrested on new charges of robbery and attempted robbery in Orange County. As a result, he was unable to return for sentencing in Pinellas County as scheduled on March 23, 2012. Later, Mr. Hawkins moved to withdraw his pleas on the grounds that he had not been furloughed on Friday, February 3, 2012, the day that he entered his no contest pleas. Instead, he was not released until the following Monday, February 6. Mr. Hawkins maintained that the delay in obtaining his release had made it impossible for him to collect the funds to pay the required restitution to his victims. The circuit court denied the motion to withdraw pleas.

At the sentencing hearing held on September 4, 2012, the circuit court noted that Mr. Hawkins had violated the terms of his plea agreement by being arrested on new charges in Orange County. For this reason, the circuit court sentenced him to five years in prison on each of the pending charges. The circuit court designated the sentences to run concurrently.

On October 1, 2012, the circuit court held a hearing on a motion filed by Mr. Hawkins for the reconsideration of his sentences. By then, the State had nolle prossed the Orange County charges. Based on this change in circumstances, the circuit court granted the motion to reconsider the sentences and reduced the sentences from five years to thirty months in the state prison. Once again, the circuit court designated the sentences to run concurrently. This appeal followed.

II. MR. HAWKINS' APPELLATE ARGUMENTS

On appeal, Mr. Hawkins makes three arguments. First, the circuit court's acceptance of his pleas to two counts of failure to appear violated double jeopardy when the limited facts recited at the hearing on the change of pleas reflect that his failure to appear was not willful and when the charges stemmed from the same event. Second, the sentences imposed in excess of the one-year negotiated sentences were in error when Mr. Hawkins' failure to appear for sentencing was not willful. Third, the circuit court erred in denying Mr. Hawkins' motion to withdraw his pleas because the sheriff's failure to release him from jail on the Friday when he entered his pleas and continued detention until the following Monday violated the plea agreement. Mr. Hawkins' third argument is without merit and does not warrant further discussion. We turn now to a discussion of his first two arguments.

III. DISCUSSION

A. The Double Jeopardy Argument.

It appears that Mr. Hawkins' convictions on two offenses for failure to appearfor pretrial on December 2, 2011, violate double jeopardy because both offenses are based upon his failure to appear at a single pretrial conference. See Hilton v. State, 832 So.2d 923, 924 (Fla. 5th DCA 2002) (“The gravamen of the offense is the failure to appear at the scheduled place and time, not the number of offenses pending and scheduled for that particular occasion.”). However, we agree with the State's argument that Mr. Hawkins waived his double jeopardy argument by entering into negotiated pleas to both charges and then failing to raise the issue in his motion to withdraw pleas.

“As a general rule, a negotiated plea and sentence precludes an appeal of convictions and sentences on double jeopardy grounds.” Long v. State, 678 So.2d 925, 927 (Fla. 1st DCA 1996); see also Rosado v. State, 867 So.2d 440, 442 (Fla. 4th DCA 2004) (“[E]ven fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement.”). “There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.” Long, 678 So.2d at 927. Here, the exception to the rule does not apply because Mr. Hawkins negotiated his pleas in exchange for specific sentences. It follows that Mr. Hawkins waived his double jeopardy argument.

Similarly, Mr. Hawkins' entry of the no contest pleas constituted his acceptance that the underlying facts established a willful failure to appear, thereby barring his challenge to his convictions based upon the sufficiency of the evidence on appeal when he did not object or seek to withdraw his pleas on that basis. See D.P.J. v. State, 779 So.2d 291 (Fla. 2d DCA 1998); see also Brawley v. State, 815 So.2d 789 (Fla. 4th DCA 2002). Accordingly, we find no reversible error on Mr. Hawkins' first argument.

B. The Failure to Appear for Sentencing While on Furlough.

Mr. Hawkins' furlough arrangement required that he avoid arrest on any new charges and that he appear for sentencing on March 23, 2012. At Mr. Hawkins' sentencing on September 4, 2012, the State indicated that it was not pursuing sentences in excess of the plea agreement based upon Mr. Hawkins' arrest on new charges in violation of his furlough agreement. Accordingly, it did not put on any evidence about the facts surrounding Mr. Hawkins' arrest in Orange County. Rather, the State pursued increased sentences based upon Mr. Hawkins' failure to appear for sentencing on March 23, 2012, as required by his furlough agreement. Mr. Hawkins' defense was that his failure to appear was not willful...