Aaron M. Annatone v. State

AIN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

AARON MICHAEL ANNATONE,

Appellant,

v. Case No. 5D15-4097

STATE OF FLORIDA,

Appellee.
________________________________/

Opinion filed August 12, 2016

Appeal from the Circuit Court
for Volusia County,
Terence R. Perkins, Judge.

James S. Purdy, Public Defender, and
Robert E. Wildridge, Assistant Public
Defender, Daytona Beach, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.

LAWSON, C.J.

Aaron Annatone appeals the portion of his sentence that increased restitution from

$4500 to $45,000 after the plea and sentencing hearing concluded. Annatone argues

that this increase violated the prohibition against double jeopardy. Finding no double

jeopardy violation, we affirm.
Aaron Annatone and two other co-defendants were charged with multiple

burglaries, thefts, and other crimes, in multiple charging documents. Annatone faced

potential life sentences on several of the more serious charges, and significant

term-of-years sentences on other charges. Ultimately, all co-defendants entered

negotiated pleas to resolve all cases and all charges. One of the plea terms, to which

Annatone agreed, was full restitution to the victims. The restitution amounts were to be

reflected in civil judgments in favor of each victim, with Annatone and his other co-

defendants jointly and severally liable for the agreed restitution amounts. One of the co-

defendants entered pleas prior to trial. On the day of trial, both Annatone and his

remaining co-defendant (his brother) decided to accept the State’s offer—with Aaron

Annatone (hereinafter “Appellant”) the first of the two brothers to enter his plea. With

respect to this case and the restitution amount, the prosecutor explained the offer for

Appellant’s brother, as follows:

And then on the other cases there . . . plea to grand theft.
Adjudication, 15 years DOC, restitution is 45,000 to . . . [the
victim], joint and several, converted to civil judgment,
concurrent to the other sentence.

A few seconds later, the prosecutor outlined Appellant’s plea offer for that same charge:

2013-305892, plea to grand theft. Adjudication, 12 years
DOC, 45,000 to the victim joint and several, converted to a
civil judgment.

When Appellant and his brother decided to accept the plea offers (resolving all

cases with reduced charges and an overall sentence, for Appellant, of twelve years in

prison, with no probation to follow), the court took a break while the attorneys and

defendants completed written plea forms—one for each of Appellant’s four cases. When

the proceedings resumed a few minutes later, Appellant’s counsel reviewed the

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agreement again on the record, explaining with respect to this charge and restitution

amount:

In the case ending in 892, he’s going to be pleaing [sic] to
grand theft over $20,000. It’s going to be adjudication of guilt,
12 years Department of Corrections with credit for 1,012 days.
There’s going to be restitution in the amount of 45,000 to [the
victim] joint and several with co-defendants, converted to civil
judgment, and that is going to be run concurrent to—the court
costs in all cases is going to be concurrent to all current
sentence [sic] and all sentences pled to today.

Immediately thereafter, the trial judge administered an oath to Appellant, and

conducted a thorough plea colloquy. As part of this colloquy, Appellant confirmed that

“by signing those [four] plea agreements . . . [he was] indicating [his] agreement to the

terms of the plea that [his counsel] just described . . . in open court” (emphasis added).

Although the record clearly reflects that the agreed restitution in this case was

$45,000, the plea form submitted to the court erroneously reflected a restitution amount

of $4500. And, in pronouncing sentence, the trial court announced this lower amount.

After the pronouncement of sentence, Appellant was led from the courtroom and his

attorney left. The judge then began the plea hearing for Appellant’s brother. When

discussing the brother’s pleas, the judge recognized the discrepancy between the amount

he had read into the record a few minutes earlier and the supposedly joint and several

obligation for a much higher amount on the brother’s plea form. The prosecutor confirmed

what both she and Appellant’s counsel had explained at Appellant’s plea hearing a few

minutes earlier—that the agreed restitution amount for this case (and for all co-

defendants) was $45,000. The prosecutor suggested that when the restitution order was

entered, it should be in the correct amount of $45,000—and stated that she would discuss

the matter with Appellant’s counsel and submit a proposed restitution order later.

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However, the record does not indicate whether the discussion took place. The next

relevant matter of record occurred one week after the sentencing hearing when the trial

court entered a written restitution order reflecting the $45,000 amount, instead of the

orally pronounced amount of $4500.

Appellant argues that this increase in restitution violated double jeopardy

principles,1 relying on the general rule that increasing a lawful sentence after a defendant

has begun to serve it violates the double jeopardy protection against multiple

punishments for the same offense. See, e.g., Ashley v. State, 850 So. 2d 1265, 1267

(Fla. 2003) (“Once a sentence has been imposed and the person begins to serve the

sentence, that sentence may not be increased without running afoul of double jeopardy

principles.” (citations omitted)).2 There is, however, an exception. As explained in Dunbar

v. State, 89 So. 3d 901 (Fla. 2012) (expressly distinguishing Ashley):

As it relates to barring multiple punishments for the same
offense in the noncapital sentencing context

the application of the double jeopardy clause
. . . turns on the extent and legitimacy of a
defendant's expectation of finality in that
sentence. If a defendant has a legitimate
expectation of finality, then an increase in that

1 The State correctly notes that Appellant did not properly preserve this issue
below; however, we have previously upheld review in a similar situation finding that
"errors that violate a defendant's double jeopardy rights are deemed fundamental." Fisher
v. State, 124 So. 3d 413, 414 n.1 (Fla. 5th DCA 2013).
2 This general double jeopardy principle also applies to any restitution amounts
announced as part of the sentence. See, e.g., Kittelson v. State, 980 So. 2d 533, 535
(Fla. 5th DCA 2008) ("[O]nce the court has entered an order setting the amount of
restitution, jeopardy attaches . . . thereby precluding the court from modifying the amount.”
(alterations in original) (citations omitted)); Conney v. State, 981 So. 2d 626, 630 (Fla. 2d
DCA 2008) (“Increasing a restitution amount violates a defendant's right to not be twice
placed in jeopardy, even when the original restitution amount was based on a mistake or
faulty information." (citing Ely v. State, 855 So. 2d 90, 91 (Fla. 2d DCA 2003))).

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sentence is prohibited by the double jeopardy
clause. If, however, there is some circumstance
which undermines the legitimacy of that
expectation, then a court may permissibly
increase the sentence.

Id. at 904-05 (alterations in original) (quoting United States v. Fogel, 829 F.2d 77, 87 (D.C.

Cir. 1987)); cf. United States v. DiFrancesco, 449 U.S. 117, 139 (1980).

In our view, a defendant who agrees to a restitution amount as part of a negotiated

plea agreement has no legitimate expectation of finality in the pronouncement of

restitution in an amount lower than that to which he agreed, when the court has accepted

the agreement and is simply attempting to impose the agreed sentence. 3 The Utah

Supreme Court reached the same conclusion. See State v. Rodrigues, 218 P.3d 610,

619 (Utah 2009) (holding that double jeopardy principles did not prevent trial court that

ordered restitution pursuant to a plea agreement from increasing the restitution amount

in response to the state’s motion where “there had been a misstatement of what was

actually owed and the increased restitution merely reflected what the parties had agreed

to under the plea agreement”). In Rodrigues, the court concluded, correctly in our view,

3 The conviction and sentence do not become “final” until the thirty-day appeal
period has passed, at the earliest. See, e.g., Armstrong v. State, 148 So. 3d 127, 128
(Fla. 2d DCA 2014) (“When no appeal is filed, finality occurs thirty days after rendition of
the judgment and sentence . . . .”). If no correction were made within that thirty-day
window, the defendant might then gain an expectation of finality. Cf. Dunbar, 89 So. 3d
at 906 (“When a trial court fails to pronounce nondiscretionary sentencing terms, the
defendant has no legitimate expectation in the finality of that sentence, at least until the
reviewing court has issued a mandate or the time for filing an appeal has run.”); but also
cf. United States v. Lundien, 769 F. 2d 981 (4th Cir. 1985) (constitutional protections may
be implicated “when a sentence is enhanced after the defendant has served so much of
his sentence that his expectations as to its finality have crystallized and it would be
fundamentally unfair to defeat them”). Here, however, the mistake was caught almost
immediately, and the restitution order now appealed was entered only one week after the
plea and sentencing proceeding.

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that the defendant “had no legitimate expectation of finality in the original order of

restitution because it did not reflect what he had agreed to in the plea agreement.” Id. at

619-20.

AFFIRMED.

WALLIS and EDWARDS JJ., concur.