Opinion
No. 4D11-3589
04-03-2013
JAMES B. FLYNN, Appellant, v. STATE OF FLORIDA, Appellee.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
.
Once jeopardy attaches, a trial court is prohibited from imposing a greater penalty on a defendant than he or she initially received. However, if a plea agreement incorporates return from a furlough as a condition to a shortened sentence, then principles of double jeopardy are not violated by imposition of a greater penalty when the defendant fails to return. Because here the plea agreement did not incorporate return from furlough as a condition of Flynn's sentence, the imposition of a greater sentence when Flynn failed to return without the opportunity to withdraw the plea was a violation of double jeopardy. Thus, we reverse and remand for further proceedings.
James Bernard Flynn was charged with burglary of a dwelling and grand theft. Flynn pleaded no contest to both charges. During the plea colloquy, there was no discussion of a furlough agreement between Flynn and the State, and Flynn's written plea form says nothing about a furlough agreement. Rather, the subject of furlough arose after the court accepted Flynn's plea, but just prior to the court announcing a sentence. At that point, Flynn's attorney advised the judge: "we agreed he could stay out till [sic] Monday before the court imposes sentence." The judge responded, "Certainly subject to certain terms and conditions," to which Flynn's attorney said, "Right." The trial judge immediately proceeded to sentence Flynn to two nine-year terms, granted furlough, and ordered him to surrender on November 29, 1999.
After sentencing, the court explained that failure to appear would result in his agreed sentence being vacated and the maximum sentences being entered for each of his charges. Flynn responded that he understood and agreed; however, he failed to return from furlough. Eleven years later, he was brought to the court; his nine-year sentences were vacated; and the maximum sentence for each charge was entered. Now, Flynn argues that his double jeopardy rights were violated because he was sentenced twice for each offense.
Double jeopardy bars a defendant from being convicted or punished twice for the same offense. Scott v. State, 937 So. 2d 746, 749 (Fla. 4th DCA 2006). Once jeopardy attaches, a trial court is prohibited from imposing a penalty greater than the sentence already imposed. Ingraham v. State, 842 So. 2d 954, 955 (Fla. 4th DCA 2003). In Ingraham, the trial court imposed a sentence at the plea conference, and all parties agreed to a three-month furlough. Id. The defendant signed a waiver form explaining that if he failed to return from furlough, the court could enter a substantially greater sentence. Id. at 954-55.
We explained that the crucial moment when jeopardy attaches is when the trial court orally pronounces the defendant's sentence. Id. at 955. This submits the defendant to jeopardy, and his sentence cannot be increased without violating principles of double jeopardy. Id. Here too, jeopardy attached when the trial court orally pronounced Flynn's sentence to each nine-year term.
If a plea is conditioned upon return from furlough, the trial court need not provide the defendant with an opportunity to withdraw his plea prior to enhancing his sentence. Payne v. State, 624 So. 2d 815, 816 (Fla. 4th DCA 1993) (citing Quarterman v. State, 527 So. 2d 1380 (Fla. 1980); Fambro v. State, 581 So. 2d 199 (Fla. 4th DCA 1991)). However, where return from furlough is not incorporated as a condition of the defendant's plea agreement, the court must permit the defendant to withdraw his plea prior to imposing a greater sentence. Payne, 624 So. 2d at 816. In Payne, the defendant was granted furlough. Id. The trial court explained that the agreement to return was not part of the plea agreement, but if he did not appear after furlough, he would not receive the benefit of the plea agreement. Id. We corrected the trial court's error, explaining that because return from furlough was not part of the negotiated plea, the court was required to allow the defendant to withdraw his plea. Id.
Similarly, Flynn's return from furlough was not part of his plea agreement. As a result, the trial court erred in refusing to permit him to withdraw his plea prior to imposing an enhanced sentence. Accordingly, the enhanced sentences imposed are reversed, and the case is remanded to the trial court with directions to give Flynn the opportunity to withdraw his plea should he so desire.
Reversed and remanded for further proceedings. POLEN, STEVENSON and CONNER, JJ., concur.
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 9911510CF10B.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.