DEBRA LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Debra Lewis appealed her convictions for possession of cannabis with intent to sell and trafficking in cannabis, challenging them on double jeopardy grounds and arguing her sentence was illegal under an allegedly unconstitutional statute. The Fifth District Court of Appeal affirmed her convictions and sentence, finding that her bargained-for plea agreement waived any double jeoparty challenge and that her sentencing claim was not properly preserved for appellate review.
The court did not reach the double jeoparty question because Lewis's bargained-for plea agreement waived her right to challenge the convictions on double jeopardy grounds on appeal. Additionally, the sentencing error claim was not preserved for appellate review because it was not raised at trial or in post-trial proceedings as required by Florida Rule of Criminal Procedure 3.800(b).
[1] A bargained-for plea agreement waives the right to challenge convictions on double jeopardy grounds.
[2] A defendant who does not reserve the right to appeal is precluded from challenging convictions based on a double jeopardy violation, even if the plea was not bargained fo…
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Join FLexlaw to unlock all legal intelligence“a bargained-for plea agreement which thereby waived her right to make a double jeopardy challenge to the convictions and sentence on appeal”
Establishes that plea agreements waive double jeopardy challenges on appeal
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Join FLexlaw to unlock all legal intelligenceDebra Lewis was charged with possession of cannabis with intent to sell or deliver and trafficking in cannabis. After the denial of her motion to supp…
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SAWAYA, J.
Debra Lewis appeals the judgment and sentence imposed following the denial of her motion to suppress and her subsequent no contest plea to possession of cannabis with intent to sell or deliver and trafficking in cannabis. She argues 1) that the possession charge should be dismissed because the dual convictions violate double jeopardy; and 2) that the sentence imposed was illegal because Chapter 99-188 is unconstitutional as it violates the single subject rule.1 We affirm.
It is not necessary for us to decide whether Lewis’s convictions violate double jeopardy because the record indicates that Lewis entered into a bargained-for plea agreement which thereby waived her right to make a double jeopardy challenge to the convictions and sentence on appeal. Melvin v. State, 645 So. 2d 448 (Fla.1994); Novaton v. State, 634 So. 2d 607 (Fla.1994) (holding that a bargained-for plea waives the right to attack multiple convictions on double jeopardy grounds); Blair v. State, 805 So. 2d 873, 878 (Fla. 2d DCA 2001) (“Where a guilty plea is bargained for, double jeopardy claims as to the conviction and sentence are waived.”) (citations omitted); Colson v. State, 717 So. 2d 554 (Fla. 4th DCA 1998); Johnson v. State, 676 So. 2d 1017 (Fla. 5th DCA 1996); Powell v. State, 657 So. 2d 37 (Fla. 5th DCA 1995); Bryant v. State, 644 So. 2d 513 (Fla. 5th DCA 1994), review denied, 654 So. 2d 130 (Fla.1995).
Even if the plea agreement was not bargained for, Lewis is precluded from challenging her convictions based on a double jeopardy violation because she did not reserve the right to appeal. Watson v. State, 702 So. 2d 584 (Fla. 2d DCA 1997); Rodriguez v. State, 622 So. 2d 1084 (Fla. 4th DCA 1993); Ford v. State, 556 So. 2d 483 (Fla. 2d DCA 1990); Wells v. State, 390 So. 2d 808 (Fla. 5th DCA 1980).
We therefore affirm her convictions.
As to the second issue, a sentencing error that occurs after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b), even a fundamental error, is barred from appellate review if it is not raised at trial or in post-trial proceedings pursuant to rule 3.800. Maddox v. State, 760 So. 2d 89 (Fla.2000); Geri v. State, 797 So. 2d 605 (Fla. 1st DCA 2001); Harvey v. State, 786 So. 2d 595 (Fla. 1st DCA 2001), review granted, 797 So. 2d 585 (Fla.2001); Capre v. State, 773 So. 2d 92 (Fla. 5th DCA 2000).
Lewis’s initial brief was filed after the effective date of the amendments to rule 3.800(b), consequently her claim of sentencing error, even if fundamental, is not preserved for appellate review and Lewis is precluded from raising this issue for the first time on appeal. See Maddox; Malone v. State, 777 So. 2d 449 (Fla. 5th DCA 2001); see also Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001).
Accordingly, we affirm Lewis’s sentence without prejudice to her right to seek appropriate post-conviction relief. Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002); Stinson v. State, 785 So. 2d 759 (Fla. 1st DCA 2001); Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000).
AFFIRMED.
THOMPSON, C.J., and PLEUS, J., concur. . See Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002). Lewis received a three-year mandatory sentence on the trafficking charge pursuant to section 893.135(1), Florida Statutes (1999), which was amended by Chapter 99-188. The court in Taylor held Chapter 99-188 unconstitutional because it violated the single subject rule.
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Cabrera v. State, 884 So. 2d 482 (Fla. 5th DCA 2004)…of the procedure established in rule 3.800(b), the defendant “retains an opportunity to assert the sentencing error after the direct appeal, through either rule 3.800(a) or rule 3.850.” Brannon, 850 So. 2d at 458 (footnote omitted); Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002); Gen v. State, 797 So. 2d 605 (Fla. 1st DCA 2001); Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000). However, rule 3.800(a) applies to illegal sentences and the Legislature and the courts have repeatedly held that a sexual preda…
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Dunbar v. State, 35 So. 3d 54 (Fla. 5th DCA 2010)…814 So. 2d 1187 (Fla. 5th DCA 2002). Accordingly, we affirm Dunbar’s convictions and sentences without prejudice to his right to seek appropriate and timely postconviction relief. Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005); Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002). AFFIRMED. ORFINGER, TORPY and EVANDER, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . The trial court also imposed the mandatory minimum term of twenty years pursuant to section 77…
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Sibley v. State, 955 So. 2d 1222 (Fla. 5th DCA 2007)…eral rule that a defendant waives any double jeopardy claims when he enters into a negotiated plea agreement with the State. See, e.g., Novaton v. State, 634 So. 2d 607 (Fla.1994); Denyer v. State, 845 So. 2d 295 (Fla. 5th DCA 2003); Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002). However, an exception to the general rule occurs when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent [*1225] from the record; and (c) there is nothing in the r…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (25 total)
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002)
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Melvin v. State, 645 So. 2d 448 (Fla. 1994)
- Harvey v. State, 786 So. 2d 595 (Fla. 1st DCA 2001)
- Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001)
- Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000)
- Washington v. State, 814 So. 2d 1187 (Fla. 5th DCA 2002)
- Colson v. State, 717 So. 2d 554 (Fla. 4th DCA 1998)
- Blair v. State, 805 So. 2d 873 (Fla. 2d DCA 2001)