Espinueva v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2007
LOWEN ESPINUEVA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D05-3562
[January 10, 2007]
CORRECTED OPINION
FARMER, J.
The State seeks clarification of our opinion, and the defendant writes
informally to advise that the actual charges were attempted felony murder
and attempted armed robbery. We grant the motion, correct the statement
of the charges, and substitute this corrected opinion for the original.
When defendant was arrested by Coral Springs police for his
participation in a bank robbery, almost immediately thereafter he was
arrested by the FBI as well to answer for federal criminal charges arising
from the same episode. Meanwhile, the State of Florida proceeded to file
charges against him, including two counts of attempted felony murder, two
counts of attempted armed robbery, and one count of grand theft. More
than two years later he filed a motion for speedy trial discharge, arguing
that the speedy trial time had long since passed. The trial court properly
denied the motion, citing the rule’s exception from the speedy trial
requirement when the defendant is in federal custody. See, Fla. R. Crim.
P. 3.191(e) (providing that defendant is not entitled to benefit of speedy
trial rule until federal custody ends and defendant is returned to Florida
custody); see also, State v. Mitchel, 768 So.2d 1223, 1224 (Fla. 3d DCA
2000), rev. denied, 804 So.2d 329 (Fla. 2001) (provisions of rule 3.191(e)
apply even when defendant was in state custody before being taken into
federal custody). We therefore affirm his conviction.
Defendant’s plea was conditioned on his right to appeal the speedy trial
issue. At sentencing he did not object to the multiple sentences on double
jeopardy grounds, as he now seeks to do for the first time on appeal. The
State argues that this sentencing issue is not preserved for appeal. See,
Novaton v. State, 634 So.2d 607, 608 (Fla. 1994) (holding that defendant
waived claim of double jeopardy as to sentences where plea bargain
consented to separate sentences on each count).
In this instance,
however, the plea agreement did not include any understanding as to
sentencing. At the plea hearing, defendant was asked to acknowledge that
there was no agreement as to sentencing, and the trial court duly noted
that there were “no promises, representations or guarantees as to
sentencing.” We therefore conclude that the double jeopardy issue as to
the sentence was not waived by the plea. We therefore reverse and return
the case to the trial court to consider, in the first instance, defendant’s
contention that the sentences for the armed robbery charges imposed
violate the double jeopardy protection and, if necessary, for resentencing
as to those charges only.
Conviction affirmed; Reversed as to sentences for armed robbery.
GUNTHER and GROSS, JJ., concur.
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Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Charles M. Greene, Judge; L.T. Case No. 03-2604
CF10B.
Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant
Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Jeanine M.
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
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