Kelley v. State

• Decision Date: 30 December 2020
• Docket Number: Case No. 2D18-525
• Parties: Susan KELLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

309 So.3d 306

Susan KELLEY, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-525

District Court of Appeal of Florida, Second District.

Opinion filed December 30, 2020.

Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Chief Judge.

Susan Kelley timely appeals the revocation of her probation and the resulting sentences for several drug-trafficking offenses, imposed following an unusual sequence of proceedings in which she mistakenly entered her negotiated plea twice, later admitted to violating her probation, and was ultimately sentenced to a mandatory minimum sentence of twenty-five years in prison. As Kelley has failed to show reversible error, we affirm.

I. Background and Procedural History

On March 20, 2013, Kelley and six codefendants were charged with various offenses arising from their alleged involvement in a months-long scheme to obtain Oxycodone pills by presenting fraudulent prescriptions at pharmacies. Kelley herself was charged with conspiracy to traffic in illegal drugs (count one), trafficking in illegal drugs (counts two through five), and obtaining a controlled substance by fraud (counts twenty through twenty-three). The information stated that count one was a first-degree felony and cited to section 893.135(1)(c)1.c, Florida Statutes (2012), which sets forth the relevant twenty-five-year mandatory minimum.

Kelley entered a negotiated plea on August 19, 2013, agreeing that she would provide substantial assistance in investigating and prosecuting her codefendants before being sentenced. In exchange, the State agreed to sentence her to a three-year mandatory minimum sentence followed by seven years' probation. Sentencing was postponed, and the plea was sealed.

Kelley followed through with the agreement, testifying for the State at the trial of one of her codefendants. By the time Kelley's case was scheduled for sentencing on November 9, 2015, a different judge and prosecutor had been assigned to the case. Not realizing that Kelley had already entered a plea, the successor judge conducted another plea colloquy, and Kelley signed another plea form. At this hearing, the new prosecutor orally amended counts two through five—but not count one—to reflect a lesser amount of drugs covered under a different statutory subsection. Kelley was sentenced to mandatory minimum terms of three years in prison to be followed by seven years of probation.

Following her release from prison, Kelley admitted to violating her probation by committing a number of new law violations. Her probation was revoked, and Kelley was sentenced to the mandatory minimum term of twenty-five years in prison on count one, mandatory minimum terms of fifteen years in prison on counts two through five, and time served on counts twenty through twenty-three. She filed a timely notice of appeal.

During the pendency of this appeal, Kelley filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). The circuit court partially granted the motion, and she was resentenced on counts two through five to fifteen years in prison with no mandatory minimum. The twenty-five-year mandatory minimum sentence on count one remained in place.

II. Analysis

Kelley proposes several alternative outcomes in this case. First, she argues that her underlying convictions should be vacated and she should be able to withdraw her plea because there was no "meeting of the minds" regarding the plea agreement and the two plea colloquies violated double jeopardy principles. Second, she argues that this case should be reversed and remanded for her to be sentenced under the first plea by the original judge because, if the first plea stands, "[t]he violation of probation is null since no sentence is yet in place." Finally, she argues that the twenty-five-year mandatory minimum sentence on count one should be reversed and remanded for the imposition of the three-year mandatory minimum sentence that was agreed upon at the second plea hearing.

As a threshold issue, this is an appeal of the revocation of Kelley's probation and the partial denial of her rule 3.800(b)(2) motion, not her original conviction and sentence. If she wanted to challenge the two plea colloquies that led to her 2015 judgment and sentence, her opportunity to do so was in a timely appeal of that judgment and sentence or in a timely motion for postconviction relief. See § 924.06(2), Fla. Stat. (2015) ("An appeal of an order revoking probation may review only proceedings after the order of probation."); Fla. R. App. P. 9.140(b)(1) (authorizing appeal of final judgment, orders of probation, and revocation orders under separate subsections); see also Lindsay v. State, 842 So. 2d 1057, 1058-59 (Fla. 4th DCA 2003) (discussing the scope of the circuit and appellate courts' jurisdiction over appellant's original judgment and sentence, probation revocation, and postconviction motion); Farrar v. State, 42 So. 3d 265, 266 (Fla. 5th DCA 2010) (concluding that challenges to underlying convictions, such as double jeopardy claims, are not cognizable in a rule 3.800(b)(2) motion).

The irregularities leading up to the original judgment and sentence would change the outcome of the revocation appeal only if Kelley could show that the original judgment or sentence was void and therefore the court never had the jurisdiction to place her on probation in the first place. See Wilson v. State, 487 So. 2d 1130, 1130 (Fla. 1st DCA 1986) ("Since the sentence which originally placed Wilson on probation was void, the court had no authority to revoke his probation."); Bales v. State, 489 So. 2d 888, 889 (Fla. 1st DCA 1986) ("Because the court lost jurisdiction to mitigate Bales' sentence 60 days after it was initially imposed, the probation order dated January 3, 1984 was void. Since the order placing Bales on probation was void, the order revoking his probation and the sentence imposed are also void." (citing Wilson, 487 So. 2d at 1130 )).

Kelley has not shown that the original judgment and sentence was void. Rather, she has simply shown that the court mistakenly conducted her plea colloquy twice and that the State mistakenly made her sign two plea forms. The fact that there were two plea colloquies does not constitute a violation of double jeopardy because Kelley was not subject to multiple prosecutions, convictions, or sentences for the same offense. See Rozier v. State, 620 So. 2d 194, 196 (Fla. 1st DCA 1993) (explaining that there are "three guarantees afforded by the constitutional protection against double jeopardy: (1) protection against a second prosecution for the same offense after an acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense").

The terms of the plea agreement as discussed at the August 2013 and November 2015 plea hearings were materially the same, and the judgment and sentence that was ultimately entered in 2015 was consistent with the agreement. At both hearings, Kelley stated that she was pleading guilty to the offenses as charged in the information. The information stated that count one was a first-degree felony and cited to section 893.135(1)(c) 1.c, which sets forth the relevant twenty-five-year mandatory minimum. At both hearings, it was clear on the record that Kelley was receiving a downward departure sentence based on her agreement with the State and that sentence would be a mandatory minimum three years to be followed by seven years of probation. At the first hearing, Kelley was fully advised of the minimum and maximum sentences, including specifically the twenty-five-year mandatory minimum on count one. The court accepted her plea but postponed sentencing. At the second hearing, the prosecutor made the deal even more favorable to Kelley by orally amending the information to reduce the charges in counts two through five. Then Kelley was sentenced to a mandatory minimum of three years on counts one through five without mention of the twenty-five-year mandatory minimum on count one. The court specifically noted that it was basing this downward departure sentence on Kelley's substantial assistance and cooperation with the State.

Both written plea forms make clear that the State was agreeing to recommend a reduced sentence of...