SMITH v. STATE (2022)

Gerrel Smith appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He raises several issues on appeal. We find merit in only one—that resentencing Smith after he completed his original sentences for four counts of aggravated assault violates the prohibition against double jeopardy.

In 2010, Smith was charged and convicted of a single count of aggravated battery with a firearm (Count I) and four counts of aggravated assault with a firearm (Counts II–V). The jury found he discharged a firearm during the commission of the aggravated assaults. The trial court sentenced Smith to twenty years of imprisonment on Count I and a three-year mandatory minimum term of imprisonment, crediting him 837 days of time served, on Counts II–V.

After sentencing, Smith filed his notice of appeal. Five months later, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), Smith filed a motion to correct sentencing error with respect to Count I, the aggravated battery count. Approximately two months later the State filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) and argued that the sentences imposed with respect to Counts II–V, the four counts of aggravated assault, were illegal. This was the first time the State objected to Smith's sentences for the four counts of aggravated assault.

After hearing argument from both parties, the postconviction court found that the sentence for the aggravated battery count, as well as the sentence for each of the four aggravated assault counts, were illegal. The postconviction court vacated the sentences and resentenced Smith to fifteen years in the Department of Corrections, with a three-year mandatory minimum term on the aggravated battery count, and to twenty years in the Department of Corrections, with a twenty-year mandatory minimum term on each of the four counts of aggravated assault. The court ordered that all the sentences run concurrent with each other.

Smith timely appealed his new sentences for aggravated assault, arguing that the trial court lacked jurisdiction to grant the State's Rule 3.800(a) motion. Florida Rule of Criminal Procedure 3.800(a) expressly forbids the State from filing such a motion when a direct appeal is pending. Agreeing with Smith, this Court vacated the corrected sentences on the four counts of aggravated assault and remanded the case so the State could file its motion in compliance with Rule 3.800(a), that is, file its motion after Smith's direct appeal was resolved. Smith v. State, 82 So. 3d 1185, 1186 (Fla. 5th DCA 2012).

On remand, and after Smith's direct appeal was resolved, the State filed an amended Rule 3.800(a) motion seeking the same relief: to correct the three-year mandatory minimum sentence for each of the four counts of aggravated assault. The postconviction court again granted the State's motion and resentenced Smith to twenty years in the Department of Corrections. But this time there was another problem: by the time the postconviction court corrected the sentencing error on the aggravated assault counts, Smith had already completed his sentence for each of the four counts of aggravated assault.¹

Again, Smith challenged the corrected sentence. Proceeding pro se, Smith filed a Rule 3.850 motion and alleged as his first claim that the corrected sentence on each count for aggravated assault—imposed after he completed the original sentences—violated double jeopardy. The postconviction court disagreed and reasoned that because Smith's sentence for each count of aggravated assault was illegal, the sentence could be corrected at any time, including after it had been completed.²

With the benefit of counsel, Smith appealed the postconviction court's denial of his Rule 3.850 motion but did not include in his grounds for reversal any double jeopardy argument. As a result, this Court has never considered Smith's current complaint that his corrected sentences for four counts of aggravated assault violate the prohibition against double jeopardy. We do so now.

The sentences originally imposed for each of the four counts of aggravated assault were illegal. Section 775.087(2)(a)(1), (2) and (3) do “not authorize a court to impose a lesser sentence than otherwise required by law.” § 775.087(2)(b), Fla. Stat. (2010). Because the jury found that Smith discharged a firearm during the commission of the aggravated assaults, the sentence required by law was a twenty-year mandatory minimum sentence.³ See Allen v. State, 853 So. 2d 533, 536 (Fla. 5th DCA 2003); State v. Scanes, 973 So. 2d 659, 661 (Fla. 3d DCA 2008). Yet, Smith received only a three-year mandatory minimum term for each count of aggravated assault.

Typically, “[i]t does not offend double jeopardy principles to resentence a defendant to harsher terms when the original sentence was invalid.” Allen, 853 So. 2d at 536. However, this Court previously held that when a defendant serves the entirety of his or her sentence, it violates the prohibition against double jeopardy to resentence the defendant. Stallings v. State, 182 So. 3d 786, 787 (Fla. 5th DCA 2015) (“Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.” (quoting Maybin v. State, 884 So. 2d 1174, 1175 (Fla. 2d DCA 2004); Sneed v. State, 749 So. 2d 545 (Fla. 4th DCA 2000))).⁴ This is true even if the initial sentence was illegal. Id.; accord Willingham v. State, 833 So. 2d 237, 238 (Fla. 4th DCA 2002) (“Where a sentence has already been served, even if it is an illegal sentence, the court lacks jurisdiction and would violate the Double Jeopardy Clause by resentencing the defendant to an increased sentence.”); State v. Jimenez, 173 So. 3d 1020, 1025 (Fla. 3d DCA 2015) (“[O]nce a sentence has been fully satisfied, even if it is an illegal or invalid sentence, a trial court may not increase or amend the sentence, as this would violate a defendant's double jeopardy rights”).⁵ Following our precedent in Stallings, we find that Smith had a legitimate expectation of finality in his original sentences for the four counts of aggravated assault.

This finding does not end our analysis, however. Because Smith raised the same issue in a prior motion that was denied by the postconviction court after it was fully litigated, the judicial doctrine of collateral estoppel, or issue preclusion, applies, and we must now determine whether the application of a procedural bar would defeat the ends of justice. See State v. McBride, 848 So. 2d 287, 290 (Fla. 2003) (explaining that when a defendant raises an issue in a postconviction motion and is denied relief, but fails to appeal, he is collaterally estopped from raising the same issue in another Rule 3.800 motion, unless the manifest injustice exception applies).

Guiding our analysis is the Florida Supreme Court's holding in State v. Akins that a sentence violating a defendant's right against double jeopardy is a manifest injustice. 69 So. 3d 261, 272 (Fla. 2011) (holding that “[b]ecause we conclude that the trial court's subsequent imposition of an HFO designation to Akins’ judgment and sentence violated double jeopardy and amounted to an illegal sentence, we also conclude that the Second District was proper in addressing Akins’ claim to correct his illegal sentence”). Applying Akins to the facts in this case, we reverse the postconviction court's order and remand with instructions for the postconviction court to reinstate the original sentences for Counts II-V, the four counts of aggravated assault, because the corrected sentences violated Smith's right against double jeopardy. We affirm without discussion the trial court's denial of Smith's remaining claims.

AFFIRMED in part; REVERSED in part and REMANDED with instructions.

The outcome of Smith's case is controlled by precedent. See, e.g., Stallings v. State, 182 So. 3d 786 (Fla. 5th DCA 2015); Smith v. Brown, 135 Fla. 830, 185 So. 732 (1938). This precedent establishes a bright line rule which may not always be appropriate if the real question is whether a party had a legitimate expectation of finality. But for this precedent, I would ask whether Smith's specific circumstances undermine the actual legitimacy of his expectation of finality.

FOOTNOTES

1.   Smith was still serving time on his conviction for aggravated battery.

2.   Citing this Court's opinion in Allen v. State, 853 So. 2d 533, 536 (Fla. 5th DCA 2003), the postconviction court reasoned that Florida Rule of Criminal Procedure 3.800(a) allows the State to also seek correction of an illegal sentence and that the plain language of the rule allows the court to correct an illegal sentence “at any time.”

3.   In 2016, aggravated assault was removed from the list of offenses for which the firearm mandatory minimum sentence could be imposed. However, Smith's offenses were committed in 2008.

4.   The State could have appealed Smith's illegal sentence within thirty days of rendition as permitted by section 924.07(e), Florida Statutes. Instead, it allowed the time for filing an appeal to run and improperly raised the sentencing issue for the first time by filing an unauthorized Rule 3.800(a) motion seven months after the illegal sentences at issue were imposed. Fla. R. Crim. P. 3.800(a)(1) (“[A] party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.”); Fla. R. Crim. P. 3.800(b) (“Motions may be filed by the state under this subdivision only if the correction of this sentencing error would benefit the defendant or to correct a scrivener's error.”).

5.   Had the postconviction court corrected Smith's illegal sentences before he completed them, we might have reached a different result. See Kopson v. State, 199 So. 3d 1071, 1073 (Fla. 4th DCA 2016) (comparing cases concerning illegal sentences that have been completed with cases concerning illegal sentences that have not been completed). But that is not the case here.

PER CURIAM.

COHEN and TRAVER, JJ., concur. NARDELLA, J., concurs and concurs specially, with opinion.