Melendez v. State

339 So.3d 498

Ernesto MELENDEZ, Appellant,

v.STATE of Florida, Appellee.

No. 2D20-933

District Court of Appeal of Florida, Second District.

June 3, 2022

Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.

SLEET, Judge.

Ernesto Melendez challenges the sentence the circuit court imposed on resentencing in circuit court case number 05-17434 following his successful postconviction challenge based on Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Henry v. State , 175 So. 3d 675 (Fla. 2015). Because Melendez failed to preserve this issue by contemporaneous objection or raising it in a timely-filed Florida Rule of Criminal Procedure 3.170(l ) motion, we must affirm.

Melendez was convicted in several circuit court cases for multiple offenses stemming from a single criminal episode that occurred when he was sixteen years old. On October 7, 2008, Melendez appeared in court on case numbers 05-17895 and 05-17434. At that time, the trial court noted that in a different case, number 05-17894, Melendez had already been convicted by a jury of attempted robbery with a firearm and aggravated assault with a deadly weapon but that he had not yet been sentenced in that case. The trial court stated:

[I]f he wants to plead guilty open to the Court in the two pending cases I will give him 20 years in the Florida State Prison, followed by 20 years['] probation.

....

I'm going to sentence him on the cases in front of me. If he wants to plead to these other charges that are pending I'll give him 20 years followed by 20 years['] probation on those to run concurrent and to run concurrent with whatever other sentence he may be serving. It is my intention to sentence him on the case that he's been tried in front of me on to 20 years['] Florida State Prison consecutive to the other cases. So, there you go.

....

My understanding is the other cases are already ... pending .... [M]y intention on 05-17894 is to give him 20 years in the Florida State Prison consecutive to any other sentence he may be serving, okay? My – if he wants to enter a plea open to the Court today I will give him on ... 05-17434, 20 years in the Florida State prison ... to run concurrent followed by 20 years['] probation and that will run concurrent with any other sentence he's serving right now.

Melendez accepted the offer and entered guilty pleas in cases 05-17895 and 05-17434, and the trial court sentenced him to fifteen years' prison in case 05-17895 and to twenty years' prison followed by twenty years' probation in case 05-17434, to run concurrently with one another and his previously imposed sentences. The court then sentenced Melendez in case 05-17894, in which he had been convicted after jury trial, to fifteen years' prison on count one and a consecutive five-year prison term on count two, both to be served consecutively to the sentences in his other five cases.

Melendez subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion in all six cases challenging his sentences—which amounted to twenty years consecutive to twenty years for an aggregate total of forty years in prison—as being in violation of Graham , 560 U.S. 48, 130 S.Ct. 2011, and Henry , 175 So. 3d 675, because they did not include a provision for judicial review after a certain number of years as is required by section 921.1402, Florida Statutes (2014).¹ The State conceded that Melendez was correct, and the postconviction court granted the motion and entered a new sentencing order. In that order, in case 05-17894—the case in which Melendez was convicted following jury trial—the circuit court again sentenced him to fifteen years' prison on count one and to five years' prison on count two, but this time the counts were to be served concurrently to one another and to the sentences in the other five cases. As to the two cases in which Melendez entered pleas, in case 05-17895, the trial court once again sentenced Melendez to fifteen years' prison to be served concurrently to his other sentences. But in case 05-17434—the case at issue in this appeal—the court increased Melendez's sentence from twenty years' prison followed by twenty years' probation to forty years' prison followed by fifteen years' probation to be served concurrently with his other sentences. The court also ordered that Melendez is entitled to judicial review of his forty-year sentence in case 05-17434 after twenty years.

On appeal, Melendez maintains that the increase in the sentence in case 05-17434 is a violation of his original plea agreement because he entered his plea with the understanding that the court would sentence him in that case to twenty years' prison followed by twenty years' probation.

In response, the State maintains that the plea Melendez entered in case 05-17434 was an open plea, not a negotiated one. The State, however, is incorrect. Despite any labels the State or the trial court may attempt to place on the plea, the transcript of the plea hearing reveals that the trial court clearly offered Melendez a specific sentence in exchange for his guilty plea. Such is a negotiated plea. See State v. Cosby , 313 So. 3d 903, 907-08 (Fla. 2d DCA 2021) ("[W]hile Cosby's plea to the charges was labeled an open plea, it was entered only after the trial court stated it agreed to impose the requested downward departure sentence. Consequently, Cosby's plea was akin to a negotiated plea ...."); Salters v. State , 840 So. 2d 295, 295-96 (Fla. 2d DCA 2003) ("Salters' sentence was imposed pursuant to a negotiated plea. In 1996, following discussions with the trial court as to the sentence that would be imposed, Salters pleaded guilty to charges for delivery and possession of cocaine.... The record supports the trial court's conclusion that the guilty plea was negotiated and given in exchange for the agreed upon sentence." (emphasis added)).

Nevertheless, Melendez has not preserved this issue for appellate review. "An issue concerning a sentence which exceeds the terms authorized in a plea agreement is not a sentencing error, but instead is a violation of the plea agreement which must be raised through a motion to withdraw plea." Williams v. State , 821 So. 2d 1267, 1268-69 (Fla. 2d DCA 2002) (emphasis added) (citing Gafford v. State , 783 So. 2d 1191, 1192 (Fla. 1st DCA 2001) ); see also Fla. R. App. P. 9.140(b)(2)(A)(ii)(b) ("A defendant who pleads guilty or nolo contendere [without reserving the right to appeal a prior dispositive order]...