
    Kelvin Terrill DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0328.
    District Court of Appeal of Florida, First District.
    April 16, 2014.
    Rehearing Denied May 6, 2014.
    
      Tatiana A. Bertsch, of Equal Justice Initiative, Montgomery, Alabama, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On this appeal from resentencing required in the wake of Graham v. Florida, 560 U.S. 48, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Kelvin T. Dortch challenges his new sentences: combined prison terms of 80 years, imposed for non-homicide offenses he committed as a fourteen-year-old. He raises several constitutional questions, none of which we find necessary to reach, because we agree with his contention that ordering his new sentences to run consecutively to a sentence imposed in another case, so that his sentences exceeded 100 years’ imprisonment in the aggregate, violated a binding pretrial stipulation. Accordingly, we reverse and remand for re-sentencing, with directions that the stipulation be honored.

Tried as an adult, the then youthful Mr. Dortch was convicted of armed sexual battery, two counts of armed robbery, and two counts of false imprisonment. He had earlier been convicted and sentenced to twenty-two years’ imprisonment for attempting escape while awaiting trial on the charges at issue in the present case. The original trial on the more serious charges was repeatedly delayed because of the unavailability of a state forensic expert. Anticipating further delays for the same reason, the prosecutor, Mr. Dortch and his trial counsel, signed a pretrial stipulation, which the prosecution drafted and the trial court approved.

In order “to expedite the trial of this case” and “to secure certain benefits to the Defendant,” the parties agreed that the state could introduce certain evidence without the forensic expert’s having to testify at trial to establish a predicate for its admission. If the state did use any of the evidence at trial, the stipulation provided, “the State and the Court agree that any sentence imposed in this case will be concurrent with the sentence imposed in case number 92-4605.” Case No. 92-4605 arose out of the attempted escape from county jail for which he had been separately convicted and sentenced.

At trial, the state adduced evidence permitted under the stipulation, without establishing the predicate that would have been necessary otherwise. But the jury hung. A few weeks before the retrial, the prosecutor sent defense counsel a letter taking the position that the stipulation was “nullified” because the forensic witness was available to testify at the second trial. The letter announced that “the State no longer agrees nor will the Court be bound by any limitation on the sentence imposed if the defendant is convicted.” On retrial, again as an adult, Mr. Dortch was found guilty on all charges.

He was adjudicated guilty and sentenced to three life sentences without parole on the sexual battery and robbery counts, with two of the three life sentences to run consecutively to each other, and all life sentences to run consecutively to the twenty-two years imposed for attempted escape in Case No. 92-4605. As far as the record reveals, the stipulation was not invoked at the original sentencing, on the direct appeal that ensued, or in any postconviction proceeding prior to 2011.

Some sixteen years after Mr. Dortch was originally sentenced, the United States Supreme Court decided Graham, holding for the first time that sentencing juvenile offenders to life imprisonment, without the possibility of parole, for non-homicide offenses violates the Eighth Amendment’s ban on cruel and unusual punishment. See Graham, 560 U.S. at 82, 130 S.Ct. 2011. Because he was a juvenile when he committed the non-homicide offenses for which he received life sentences, the trial court granted a state motion to correct what the state conceded was an illegal sentence, and set a resentencing hearing.

At resentencing, the defense sought specific performance of the stipulation, and defense counsel also asked the trial judge for a more lenient sentence, citing language in Graham, expounding on juveniles’ lack of maturity, diminished culpability, and capacity for growth and rehabilitation, as factors distinguishing juvenile from adult offenders. See Graham, 560 U.S. at 68-74, 130 S.Ct. 2011. The state argued that the stipulation was no longer binding and opposed leniency. The trial court resentenced Mr. Dortch to forty years’ incarceration on each of the “life without parole” counts, and ordered two of the forty-year sentences (but not the third) to run consecutively to each other. Ruling that it was not bound by the parties’ stipulation, the court ordered the forty-year sentences to run consecutively to the sentence in Case No. 92-4605, for a total of 102 years’ imprisonment.

On November 4, 2011, Mr. Dortch moved to correct the new sentence under Florida Rule of Criminal Procedure 3.800(b)(1). Among other things, the motion asserted that the resentencing court had unlawfully disregarded a binding, court-approved stipulation. After the trial court denied the Rule 3.800(b)(1) motion, Mr. Dortch appealed the denial on multiple grounds, but we address only the stipulation, and remand for resentencing because the trial court failed to honor the stipulation.

The motion to correct sentence filed November 4, 2011, preserved the point, even though the stipulation was not urged at the original sentencing. See State v. Collins, 985 So.2d 985, 989 (Fla.2008); Galindez v. State, 955 So.2d 517, 525 (Fla.2007) (Cantero, J., specially concurring) (“We have consistently held that resentencing proceedings must be a ‘clean slate,’ meaning that the defendant’s vacated sentence becomes a ‘nullity' and his ‘resentencing should proceed de novo on all issues bearing on the proper sentence.’” (citations omitted)). See also, e.g., Altman v. State, 756 So.2d 148, 150 (Fla. 4th DCA 2000) (holding defendant could challenge assignment of victim injury points for first time at resentencing); Baldwin v. State, 700 So.2d 95, 96 (Fla. 2d DCA 1997) (holding defendant could challenge the accuracy of a list of prior convictions on his scoresheet for first time at resentencing). The resen-tencing court ruled on the point but came to the conclusion that it was not bound by the stipulation, on grounds that the mistrial the first time out frustrated the purpose of the stipulation, and extinguished the parties’ rights and obligations under the stipulation, for that reason.

Here, as below, the appellant contends that the stipulation remains valid and binding because the trial court never formally authorized withdrawal from the stipulation, and because good cause to allow the state to withdraw never existed, in any event. He maintains that the letter the prosecutor sent purporting to rescind or nullify the agreement before the retrial was ineffective to override the stipulation. The state argues that the stipulation applied only to the original trial, and that, even if it remained in effect thereafter, Mr. Dortch should not be allowed to raise the issue now, after failing to raise it for some seventeen years.

At the outset, we reject any suggestion that a party to a stipulation may unilaterally “nullify” the stipulation as the state attempted to do in the present case. “A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971). A stipulation cannot be “impeached or swept aside” merely by the “bald statement” of a party desiring to renege. State ex rel. Alfred E. Destin Co. v. Heffeman, 47 So.2d 15, 17 (Fla.1950). “Although a stipulation is comparable to a contract in that it may embody all the essential elements of a contract, unlike a contract, the parties to a stipulation are before the court, and their agreement is subject to its supervision and may bind those incapable of binding themselves outside of court.” 2A Fla. Jur. 2d Agreed Case and Stipulations § 1 (footnotes omitted). To be relieved from a stipulation, a party must make a motion seeking the court’s leave to withdraw or amend, with notice to the other party, supported by an affidavit showing good cause. See Henrion v. New Era Realty IV, Inc., 586 So.2d 1295, 1298 (Fla. 4th DCA 1991). There was no such motion in the present case. Nor was there good cause for such a motion, given the fact that appellant had already performed or discharged all his obligations under , the stipulation.

The state argues that the defendant’s failure to invoke the stipulation at the original sentencing operated as an implicit waiver of his rights under the stipulation, citing contract law like the following:

Contractual terms may be waived implicitly, as well as expressly, by the party that the term benefits. A party may waive a provision of a contract by a course of conduct in connection with the performance of the provision. Acts or conduct giving rise to a waiver need not be affirmative in nature; a waiver of one’s rights can occur by failing to speak out in vindication of a claim when there is duty to do so.
Waiver may also take place where the person for whom performance is to be rendered fails to exercise care or diligence as to performance by the other party. Thus, the failure of one party to object to the performance of the other party for a lengthy period of time constitutes a waiver, while forbearance for a reasonable time does not.

11 Fla. Jur. 2d Contracts § 254 (footnotes omitted); accord Medico-Dental Bldg. Co. of Los Angeles v. Horton & Converse, 21 Cal.2d 411,132 P.2d 457, 469 (1942); Arbogast v. Bryan, 393 So.2d 606, 608-09 (Fla. 4th DCA 1981); Pfeifle v. Tanabe, 620 N.W.2d 167, 172 (N.D.2000). But this is not a civil case, and a judicially approved stipulation is no mere contract.

In entering into the stipulation, the appellant waived important trial rights that would otherwise have operated in his favor and might even have resulted in an acquittal at the original trial. Nor, by its terms is the stipulation limited to the first trial. The stipulation provides:

If at trial the State uses any of the evidence permitted by this stipulation for the purposes stated herein, the State and the Court agree that any sentence imposed in this case will be concurrent with the sentence imposed in case number 92-4605.

Had the parties (and the trial court who approved the stipulation) intended that the stipulation apply only to the first trial, they could have drafted language to that effect. But they did not. Instead, the state tellingly attempted to “nullify” the stipulation.

A mistrial does not automatically wipe away all stipulations previously entered into. The question whether “a judicial admission continues to have effect for a subsequent part of the same proceedings, including a new trial” is answered in the affirmative by “orthodox English practice.” 9 John Henry Wigmore, Evidence in Trials at Common Law § 2593 (Chadbourn rev. 1981). See Mugge v. Jackson, 50 Fla. 235, 39 So. 157,158-59 (1905) (“The rule is that such agreements, when their terms are not limited to a particular occasion or temporary object, may be used on a second trial.”). See also Carrasco v. State, 122 S.W.3d 366, 369 (Tex.App.2003) (concluding that a pretrial stipulation to admission of certain exhibits in which the defendant admitted stabbing the victims to death was equally binding at a second murder trial, after the first trial ended in a mistrial, where nothing in the stipulation limited its use to the first trial). The state was entitled to rely on the stipulation upon retrial in the present case, even though it elected not to do so.

We may safely infer that the evidence the state did adduce under the stipulation at the original trial was — in the prosecution’s considered judgment at the time— critical to the case it put on at the first trial. It was apparently important to the state to go forward with the original trial when it did. The state, as the burdened party, has good reasons for trying cases sooner rather than later. Speedy trial rule aside, witnesses’s memories fade, and evidence goes missing. That the first trial ended in a mistrial did not end the stipulation’s effect or significance for either party, just because the state did not avail itself of the stipulation on the retrial. Although the first trial did not result in conviction, it is the legal and logical predicate for the conviction that was obtained on retrial. If the first trial had ended in acquittal, there could have been no retrial.

The state having had the benefit of the stipulation — an opportunity to present evidence it thought crucial, evidence that may have made the difference between a hung jury and an acquittal — the defense is likewise entitled to the benefit of the bargain. Because the stipulation was violated at resentencing, the appellant is entitled to be resentenced in accordance with the stipulation. Any constitutional or other issues to which resentencing may give rise can be dealt with in due course. See Alexander v. State, 821 So.2d 1270, 1271 (Fla. 5th DCA 2002) (“The other issues presented by Alexander in his brief can be addressed at the resentencing hearing-”). See also State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) (holding as a “settled principle of constitutional law” that courts should avoid constitutional issues unnecessary to decision of a case).

Reversed and remanded.

RAY, J., concurs; MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting.

Tried, convicted and sentenced in 1994 as an adult, Dortch claimed at his Graham resentencing hearing that a stipulation entered prior to his original trial — one he had never previously sought to enforce — remains binding and should now operate to limit his decades-old sentence. While his life without parole sentences in 1994 must be adjusted in light of Graham, the revivification of the abandoned stipulation is unjustified and the recasting of its purpose is contrary to principles of finality.

Dortch and the State stipulated prior to his first trial in January 1994 that the State need not produce a forensic witness who was suffering from an injury. After the mistrial, the prosecutor announced via a letter his view that the stipulation was no longer applicable because the forensic expert would be available for the second trial scheduled for March 1994.

I have been advised this date that both Julie Cooper and Charlotte Word will be available for trial during the week of March 7, 1994. You were out of your office so I told Judge Tarbuck of their availability. Judge Tarbuck tentatively set the Dortch trial for Tuesday, March 8, beginning at 9:30 a.m. Jury selection will be on a regular jury selection date prior to the trial date. Please let Judge Tarbuck know immediately if this is not acceptable to you.
As you know, the State, the defendant and defense counsel entered into a stipulation which was agreed to by the Court. The case then proceeded to trial which resulted in a hung jury and’ a mistrial. Since Julie Cooper is now available, the stipulation relating to the diagnostic testing by Cellmark Diagnostics previously entered into is hereby nullified. Specifically the State will be required to prove chain of custody, the amplification of the DNA and DNA typing. Likewise, the State no longer agrees nor will the Court be bound by any limitation on the sentence imposed if the defendant is convicted. Specifically, the Court may impose any legal sentence either concurrent or consecutive to any other sentence previously imposed.

Dortch did not object to the State’s position. The trial proceeded, the State met its evidentiary obligations at trial via its live expert, and the jury rendered guilty verdicts as to all charges. At sentencing, Dortch again lodged no objection to the State’s position; nor did he affirmatively assert the stipulation applied to his sentence. Likewise, Dortch never raised the stipulation as an issue in a direct appeal; nor did he do so in any collateral review of his conviction or sentence. Ordinarily, this wholesale failure to assert an entitlement to a claimed right affecting sentencing amounts to waiver, or abandonment. Kilpatrick v. State, 422 So.2d 934, 935 (Fla. 1st DCA 1982) (The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct appeal.”) (quoting Roth v. State, 385 So.2d 114, 115 (Fla. 3d DCA 1980)).

Seventeen years passed. In 2011, the State filed a motion seeking resentencing of Dortch in light of the Graham decision because Dortch had yet to do so. But for the happenstance of Graham resentencing, the 1994 stipulation was a closed chapter whose vitality seemingly had expired long ago. During the resentencing hearing, however, the defense verbally raised the issue of the stipulation for the first time without notice to the State or the trial court, which continued the issue to a second hearing. After carefully reviewing the issue (including a memorandum provided at the second hearing), the trial court concluded that it was not bound by the stipulation, and imposed forty years’ imprisonment on each of the “life without parole counts,” ordered two of those sentences to run consecutively, and ordered those sentences to run consecutively to the twenty-two year sentence imposed in another case.

On the merits, the trial court was correct in disallowing Dortch to resuscitate his abandoned claim of right under the stipulation, which was not asserted for nearly two decades; even a stipulation can be foregone. See generally Fed. Land Bank of Columbia v. Brooks, 139 Fla. 506, 516,190 So. 737 (1939) (stipulations are not to be construed technically, but rather in accordance with their spirit and in the furtherance of justice). No case holds that a resentencing court must ignore a nearly two-decade failure to assert what is essentially a stale and abandoned issue as to a stipulation’s applicability, wording, and intent. It was Dortch’s obligation to raise the issue long ago; his total inaction amounts to waiver and abandonment.

Even if the stipulation could be resuscitated, its language indicates that it would apply to “any sentence imposed in this case,” a phrase that should be understood in light of circumstances existing at the time of the original trial, which show that its only purpose was to avoid delay due to the unavailability of the witness for the January trial date. To enforce the stipulation, the court had to construe it. Naghtin v. Jones By and Through Jones, 680 So.2d 573, 576 (Fla. 1st DCA 1996). And in so doing, it was required to interpret the stipulation in view of the result the parties were trying to accomplish. Fed. Land Bank of Columbia, 139 Fla. at 516, 190 So. 737. While stipulations differ from contracts in some ways, construing them is ultimately a judicial function akin to contractual interpretation. That is what the trial court did here, concluding that even if the stipulation had not been abandoned or waived, it was inapplicable to other than the original trial.

Indeed, Dortch relied almost exclusively on contract principles below, characterizing the parties’ agreement as a “stipulation contract” and arguing contract theory in support of his interpretation. The heading in his brief stated “THIS COURT’S SENTENCE UNLAWFULLY BREACHED A BINDING PRE-TRIAL STIPULATION CONTRACT.” He argued the “plain language of the [stipulation] contract” supported his view; that his contractual right should not be forfeited even though he failed to exercise it; he concluded by saying the resentencing court’s “sentence unlawfully breached a binding, pretrial stipulation contract from which the State never properly withdrew.”

A prescient prosecutor (which all must now be in light of this court’s decision) might have drafted the stipulation to take into account the potential for a mistrial and made it applicable only for the first one; but it is unfair to impose that obligation on the State twenty years later when Dortch himself remained silent and never objected or sought to enforce the claimed right. It also second-guesses the trial court’s interpretation of the stipulation’s language by imputing motives and intents to the participants, none of whom are readily available to explain the context and intent of the stipulation decades later. The record — rather than supporting a perpetual, non-waivable right flowing from the stipulation — supports the contrary conclusion: that Dortch and his prior counsel understood the stipulation applied only to expedite the first trial and that it was never contemplated it would be used in a later trial when the injured witness would become available. If they had a different view, the time to assert it has long since passed. The trial court’s holding in this regard is wholly supportable. Reviving the stipulation a generation after its conception has a prestidigitational quality that rewards inaction and undermines principles of finality; even if timely raised, the record does not support construing the stipulation so broadly. I would affirm on this issue.

I.

One benefit of reviving the stipulation is avoidance of the question of whether the 102-year cumulative sentence imposed for the two criminal episodes by the resen-tencing court violates Graham. On its face, this seemingly extra-life-size sentence flirts with the limits of this district’s current Graham jurisprudence, but it cannot be said to violate it. The total sentence arises from two separate criminal episodes, one netting Dortch twenty-two years and the other resulting in four forty-year sentences (two to be served consecutively); each of the individual sentences falls short of the life without parole sentence at issue in Graham. Under the cumulative sentence at issue, Dortch’s potential for gain-time — as noted by the trial, court — makes him eligible for release at age seventy-nine, which is within the outer parameters of our post-Graham cases. See Smith v. State, 93 So.3d 371 (Fla. 1st DCA 2012) (eighty-year consecutive sentence upheld because Smith would be scheduled for release at age eighty-one with gain-time); cf. Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012) (aggregate eighty-year sentence violates Graham where offender would be scheduled for release at eighty-five with gain-time). Affirmance on the Graham issue would seem to apply here.

That said, it is an understatement to note the fluidity of how the judiciary views Graham. Resentencing of juvenile offenders post-Graham has followed many incongruous paths. One simply says Graham does not apply to a term-of-years sentence, no matter how lengthy; another estimates the juvenile offender’s expected life span and upholds a term-of-years sentence that — with credits for good-time and other actuarial and demographic adjustments— should afford release before the then-to-be-geriatric prisoner’s statistically-determined death date (both approaches emphasizing the goals of deterrence, retribution and protecting society from recidivism). Yet another reads Graham as constitutionally requiring that states institute or restore parole and provide rehabilitative treatment services to repristinate juvenile offenders — -while they are still young, but imprisoned — to hasten their earlier release from prison; a related, but less ambitious, path is to provide for parole, but only after a minimum number of years of incarceration (both approaches emphasizing the goal of rehabilitation). These reactions to Graham — along with others — are understandable given the lack of guidance on what the Court meant when it said juvenile offenders must be given some “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” 560 U.S. at 75, 130 S.Ct. 2011 but concurrently said that the Eighth Amendment “does not require the State to release that offender during his natural life,” id., only that a juvenile sentenced to life must have “some realistic opportunity to obtain release before the end of that term.” Id. at 82, 130 S.Ct. 2011. How is the judiciary to reconcile the Court’s Rashomonic language, when four different readers can see four (or more) different interpretive paths? Our Court has chosen a path, one that would necessitate affirmance on the Graham issue in this case; but, I am doubtful this path will be without significant detours and roundabouts in the years to come. 
      
      . He also contends that scoring prior juvenile adjudications as if they were adult convictions violates due process and the requirements of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and constitutes cruel and unusual punishment; and that Dortch’s aggregate sentence denied him any meaningful opportunity for release, contrary to Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
     
      
      . Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
     
      
      . The State said “Since the defendant had not filed a motion, we went ahead and did that just to bring it in front of the Court.”
     
      
      . See generally Krisztina Schlessel, Graham's Applicability to Term-of-Years Sentences and Mandate to Provide A “Meaningful Opportunity" for Release, 40 Fla. St. U. L. Rev. 1027, 1028 (2013) (providing overview of cases interpreting Graham's application to term-of-years sentences), and Therese A. Savona, The Growing Pains of Graham v. Florida: Deciphering Whether Lengthy Tenn-of-Years Sentences for Juvenile Defendants Can Equate to 
        
        the Unconstitutional Sentence of Life Without the Possibility of Parole, 25 St. Thomas L. Rev. 182, 199 (2013) (surveying Florida and California appellate decisions post-Graham that can be "conflicting and curious”).
     
      
      . See, e.g., Smith v. State, 93 So.3d 371, 378 (Fla. 1st DCA 2012) (Padovano, J., concurring) (suggesting that section 947.16(6), Florida Statutes, should be deemed unconstitutional “to the extent that it removes parole eligibility for juvenile offenders who have been sentenced as adults.”); Gridine v. State, 89 So.3d 909, 911 (Fla. 1st DCA 2011) (Wolf, J., dissenting) (noting the "only logical way to address the concerns” in Graham ... is to provide parole opportunities for juveniles. The Legislature, not the judiciary, is empowered to create a provision for parole.”) (citation omitted), review granted, 103 So.3d 139 (Fla.2012).
     
      
      . See generally Sally Terry Green, Realistic Opportunity for Release Equals Rehabilitation: How the States Must Provide Meaningful Opportunity for Release, 16 Berkeley J. Crim. L. 1, 32 (2011) (stating that “Graham requires that a release process operate during the incarceration of the juvenile life sentence offender” such that "reinstitution of a parole-like system that focuses on rehabilitative reform purposes is paramount to the States’ compliance with Graham."); Marsha L. Levick & Robert G. Schwartz, Practical Implications of Miller and Jackson: Obtaining Relief in Court and Before the Parole Board, 31 Law & Ineq. 369, 393 (2013) (discussing parole systems for juveniles and the lack of available prison programming for juvenile offenders who enter “prison at a tumultuous developmental time in their lives.”).
     
      
      
        .See, e.g., Barry C. Feld, Adolescent Criminal Responsibility, Proportionality, and Sentencing Policy: Roper, Graham, Miller/Jackson, and the Youth Discount, 31 Law & Ineq. 263, 264 & 322-32 (2013) (proposing a categorical "Youth Discount” that provides a "proportional reduction of adult sentence lengths” via a "sliding scale of diminished responsibility” that "gives the largest sentence reductions to the youngest, least mature offenders.”).
     