Third District Court of Appeal
State of Florida
Opinion filed July 13, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D21-1018 & 3D21-1019
Lower Tribunal Nos. F17-20909 & F19-10464
________________
The State of Florida,
Appellant/Cross-Appellee,
vs.
Jeremy Rojas,
Appellee/Cross-Appellant.
Appeals from the Circuit Court for Miami-Dade County, Lody Jean,
Judge.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellant/cross-appellee.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellee/cross-appellant.
Before LOGUE, HENDON, and GORDO, JJ.
ON MOTION TO DISMISS
LOGUE, J.
In this case we are called upon to interpret the Constitutional
prohibition on double jeopardy. U.S. Const. amend. V (“[N]or shall any
person be subject for the same offence to be twice put in jeopardy of life or
limb[.]”). The State has appealed the prison sentences imposed following
revocation of Jeremy Rojas’ community control. While the State’s appeal
was still pending, Rojas completed his sentences. Rojas has moved to
dismiss the appeal because the “relief that the State is seeking – a remand
to resentence Mr. Rojas to a greater sentence would violate double jeopardy
and therefore the State’s appeal is moot.”
“[T]he application of the double jeopardy clause . . . turns on the extent
and legitimacy of a defendant’s expectation of finality in that sentence.”
Dunbar v. State,
89 So. 3d 901, 905 (Fla. 2012) (quoting U.S. v. Fogel,
829
F.2d 77, 87 (D.C. Cir. 1987)). Florida courts have held that “once 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.” State v. Jimenez,
173 So. 3d 1020, 1025 (Fla. 3d
DCA 2015). In Jimenez, for example, we held the trial court did not have the
power in 2008 to resentence the defendant pursuant to a Rule 3.800(a)
motion to five years on two separate counts, for which the defendant had
originally been sentenced in 2003 to 364 days, because the initial sentence
2
had already been served at the time of resentencing.
Id. See also Smith v.
State,
334 So. 3d 377 (Fla. 5th DCA 2022) (holding trial court erred in
granting State’s Rule 3.800(a) motion and resentencing defendant on counts
for which defendant had completed his sentence and defendant’s direct
appeal had been resolved, stating that defendant “had a legitimate
expectation of finality in his original sentences”). These cases hold that
double jeopardy can attach, under certain circumstances, based upon a
defendant’s expectation of finality concerning a sentence that has been
served.
At the same time, a defendant does not have an expectation of finality
that triggers double jeopardy when the government is pursuing a lawful
appeal of a sentence. In the leading case of U.S. v. DiFrancesco,
449 U.S.
117, 136-37 (1980), the Supreme Court held that the United States’ appeal
of a sentence does not violate double jeopardy even though it might lead to
a higher sentence when the case is sent back for resentencing. In so holding,
the Court reasoned that a defendant “is charged with knowledge of the
statute and its appeal provisions, [which allowed the United States to appeal
a sentence,] and has no expectation of finality in his sentence until the
appeal is concluded or the time to appeal has expired.”
Id. at 136. See also
Goene v. State,
577 So. 2d 1306, 1307-08, 1310-12 (Fla. 1991) (recognizing
3
that an expectation of finality is vitiated where a statutory right to appeal
exists, relying on DiFrancesco). Cf. Maybin v. State,
884 So. 2d 1174 (Fla.
2d DCA 2004) (holding that trial court’s reimposition of original 25-year
sentence after improperly granting defendant’s motion to mitigate sentence
and resentencing to time served violated double jeopardy where State failed
to seek review of order granting motion to mitigate and defendant’s sentence
of time served had already been served).
The case before us presents the question of whether the fact that the
defendant completed the sentence while the State’s appeal was pending
creates an exception to the rule in DiFrancesco. At least one court has
declined to recognize such an exception. In State v. Francis,
954 So. 2d 755,
757 (Fla. 4th DCA 2007), the Fourth District expressly rejected the
defendant’s argument that the State’s appeal should be dismissed because
he had completed the sentence imposed during the pendency of the appeal
and therefore could not be resentenced. We agree with the Fourth District.
When, as here, the sentencing order under which the defendant has
completed his sentence is on direct appeal, the defendant is imputed with
knowledge of the pending appeal and, therefore, cannot have a legitimate
expectation of finality until the appeal is completed. This is the distinguishing
characteristic between those cases such as Jimenez and Smith, which hold
4
that resentencing after completion of the original sentence violates double
jeopardy, and Francis, which holds that it does not.
Cases from other jurisdictions similarly indicate that any expectation of
finality that attaches to a completed sentence does not trigger double
jeopardy where the government’s appeal of the sentence is pending. See,
e.g., People v. Williams,
14 N.Y.3d 198, 217,
925 N.E.2d 878, 890 (2010)
(recognizing a “legitimate expectation of finality once the initial sentence has
been served and the direct appeal has been completed (or the time to appeal
has expired)”); U.S. v. Rico,
902 F.2d 1065, 1069 (2d Cir. 1990) (holding
defendant had no expectation of finality in her sentence despite being
sentenced erroneously to the time she already had served because
government had statutory right to appeal and defendant’s sentence was
open to review).
Following these cases, we deny the motion to dismiss.
5
