THE STATE OF FLORIDA v. JEREMY ROJAS

• Court: District Court of Appeal of Florida
• Decided: July 13, 2022
• Docket: 21-1019
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 13, 2022. Not final until disposition of timely filed motion for rehearing.

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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.