Florida Criminal Law Opinions

LARRY JAMES HOLMES, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D08-321

District Court of Appeal of Florida, Fifth District.

Opinion filed August 29, 2008

Appeal from the Circuit Court for Orange County, Roger J. McDonald, Judge.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Larry Holmes appeals a final order revoking his probation, adjudicating him guilty of a felony, and sentencing him to prison. Holmes argues on appeal that his probation was erroneously revoked. He claims that the State’s proof was insufficient to show that he knowingly associated with persons involved in criminal activity. We agree and accordingly reverse.

A written condition of the defendant’s probation for possession of cannabis with intent to sell required that he not knowingly associate with any persons engaged in criminal activity.

An affidavit of violation of probation charged that the defendant “did associate with persons who were engaged in criminal activity, as evidenced by his arrest on 11/24/07 by Officer Kevin Easter of the Orange County Sheriff’s Office.”

At the revocation hearing, Deputy Easter testified that on the evening of November 24, 2007, he was conducting surveillance on a CITGO gas station on Raleigh Street in Orange County, a location known for drug transactions. The deputy observed activity at the CITGO for an hour or two. Deputy Easter testified he was “speculating” as to the number of people he was watching but estimated he observed four or five people make hand -to-hand car transactions with cannabis over the course of the surveillance. During this period of surveillance, the defendant was observed walking up to the CITGO. The deputy testified that the defendant entered the CITGO and bought juice and a snack cake. The defendant then walked outside the store and stood for 10-15 minutes. The deputy again “speculated” that during this time, the defendant was “maybe eight feet, six feet” from those engaging in the drug transactions. The defendant was interacting with those involved in the transactions, this consisting of sitting within proximity to them and conversing with them. The defendant was in a position to be able to see what they were doing. The deputy saw the men (not the defendant) passing around what appeared to be a cigar and he could smell the odor of burnt cannabis. When asked how long he observed the defendant in proximity to the other men, Deputy Easter answered, “An exact time, I don’t know. He wasn’t there very long, but he was there… during a few of the transactions.” After he was detained, the defendant stated that “he knew he shouldn’t have been up there.”

The defendant testified that he walked to the CITGO to get a snack. The only contact he had with the men at the gas station was to ask for a light for his cigarette. He was outside the CITGO for “about two minutes.”

The defense argued that a willful and substantial violation was not demonstrated. The trial court ordered revocation of probation.

A trial court is vested with broad discretion in determining whether a probationer has violated a condition of his probation. A violation must be proven by the greater weight of the evidence and the evidence must show that the violation was willful and substantial. Garity v. State, 970 So. 2d 500 (Fla. 5th DCA 2007). Accord Ratliff v. State, 970 So. 2d 939 (Fla. 4th DCA 2008).

We detect two deficiencies in this case. First, crucial portions of Deputy Easter’s testimony were couched in terms of speculation. This was improper. See, e.g., State v. Covington, 973 So. 2d 481 (Fla. 3d DCA 2007).

Second, simply observing criminal activity and being aware criminal activity is occurring nearby does not establish that a defendant was knowingly associating with persons engaged in such activity. “Associate” is defined in Webster’s New Collegiate Dictionary, p. 67 (1980 ed.) as follows: “to join as a partner, friend or companion; to keep company with; to join or connect together; to bring together in any of various ways.” Thus, Bland v. State, 896 So. 2d 937 (Fla. 1st DCA 2005), the First District held that the evidence that the probationer willfully associated with persons engaged in criminal activity was sufficient to support revocation of his probation. The evidence in Bland reflected that the defendant had rented a hotel room in which he and three other people were found together with rolling papers, marijuana, a container with cocaine residue and a scale with cocaine residue. A crack pipe was found in the bathroom which was occupied by the defendant when the officer first arrived at the room. This evidence clearly established that the defendant was keeping company with or had joined with persons engaged in criminal activity.

In the present case, other than the defendant’s awareness of and proximity to the criminal activity for what the deputy labeled as a short period of time, the only evidence tying the defendant to the wrongdoers was the defendant “having conversation” with them. The deputy offered no specifics as to the nature or content of this conversation and the defendant “wasn’t there very long.” The evidence reflected that the defendant did not arrive at the CITGO with the wrongdoers and no evidence was presented that he knew them. Even assuming that the defendant asked for a light for his cigarette, such incidental contact with a person or persons who are engaged in criminal conduct does not establish an association with such person or persons.

The State correctly points out that it is up to the trial court to weigh the evidence and assess the credibility and demeanor of the witnesses. See Russell v. State, 982 So. 2d 642 (Fla. 2008). The trial court likewise could reject the defendant’s version of what occurred. See Davis v. State, 796 So. 2d 1222 (Fla. 4th DCA 2001). However, even rejecting the defendant’s version of events does not affirmatively establish the requisite association in this case between the defendant and the wrongdoers. A willful and substantial violation of probation was not established by the greater weight of the evidence. We therefore reverse and remand for reinstatement of the probation.

REVERSED AND REMANDED.

ORFINGER and TORPY, JJ., concur.

Share This

SHALLIST THOMAS HUDSON, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 1D07-6590.

District Court of Appeal of Florida, First District.

Opinion filed August 29, 2008.

An appeal from the Circuit Court for Escambia County. Michael Jones, Judge.

Nancy Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Michael T. Kennett, Assistant Attorney General, and Thomas Winokur, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Shallist Thomas Hudson appeals the trial court’s order revoking his probation. He contends that his seven-year sentence exceeds the six-year cap of section 958.14, Florida Statutes (2003), because he is a youthful offender and committed technical rather than substantive violations. The state concedes error. We reverse.

Hudson was convicted of multiple felonies and sentenced in 2004 as a youthful offender. He violated probation in 2007 by changing his residence without permission and by failing to remain at home for a scheduled visit from his probation officer. The court revoked Hudson’s probation and youthful-offender status and sentenced him as an adult to two years of community control followed by five years of probation, concluding that the second sentence of section 958.14, below, applies only when a court imposes a sentence of incarceration, because a combined sentence of community control and probation does not commit a defendant to “the custody of the department.” Because the trial court exceeded the sentence allowed by the first sentence of the provision, we need not address the second sentence.

Section 958.14 provides:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

When a defendant has been designated a youthful offender, the court may not change that status by way of revocation of probation or community control. See State v. Watts, 558 So. 2d 994 (Fla. 1990); Watson v. State, 528 So. 2d 101 (Fla. 1st DCA 1988); Rogers v. State, 972 So. 2d 1017 (Fla. 4th DCA 2008). Under section 948.06(2)(b), Florida Statutes (2003), revocation of probation subjected Hudson to any sentence that might have originally been imposed, minus credit for time served. Because section 958.04(2)(a) limited a combined sentence of probation and community control to six years, the court erred by imposing a total of seven years. See Gardner v. State, 656 So. 2d 933 (Fla. 1st DCA 1995).

REVERSED and REMANDED for further proceedings.

KAHN, PADOVANO, and HAWKES, JJ., CONCUR.

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

Share This

ALLAN L. SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D07-3282.

District Court of Appeal of Florida, Fifth District.

Opinion filed August 29, 2008.

Appeal from the Circuit Court for Osceola County, Scott Polodna, Judge.

James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant, Allan L. Smith [”Smith”], appeals his judgment and sentence on drug-related charges, objecting that he received a sentence greater than that which he agreed to in his plea agreement.

In case number CR 06-003676, Smith was charged by information with possession of cocaine with intent to sell or deliver, possession of drug paraphernalia, and resisting an officer without violence. In case number CR 06-4018, Smith was charged by information with one count of possession of cocaine. On July 31, 2007, Smith entered into a written plea agreement that specified a maximum sentence in both cases of two years as a resident of Phoenix House followed by one year of supervised probation. The criminal punishment code scoresheet reflected a lowest permissible sentence of 21.15 months and a maximum sentence of twenty-two years.

At the plea hearing, Smith’s trial counsel explained to the court that a plea agreement had been reached and discussed the terms of that agreement. He then asked that sentencing be postponed for a few weeks so that Smith could put his affairs in order.¹ The trial court agreed to take Smith’s plea and set sentencing for a later date. Next, the trial judge went through the plea colloquy with Smith. Smith stated that he understood all of his rights and that his plea was voluntarily entered into. The State put on the record the factual basis for the charges. The court then stated:

All right. I find that you are alert and intelligent and you understand the charges to which you are pleading to. You appreciate the consequences of entering your plea. You are doing so freely and voluntary based upon your lawyer’s advice, with whom you say you are satisfied.

I find that there is a sufficient factual basis for the plea, and I accept the plea at this time.

All right. I am going to discharge your bonds, allow you to remain out of custody until August 17th at 9:00 a.m. If you fail to appear at that sentencing hearing, I can do one of two things, I can either issue a capias for your arrest or I can go ahead and sentence you in absentia without you present, is what that means, and if you fail to appear that these pleas stand but the plea agreement does not.

Do you understand that? (Emphasis added). Smith acknowledged his understanding. The court then cla rified:

So, you’re — what does that mean to you; that you need to show up?

….

And if you fail to appear, I can sentence you up to 15 years in prison in the one case. Do you understand that?

Smith again stated that he understood.

Smith failed to appear at the August 17th sentencing hearing. The trial judge adjudicated him guilty, in absentia, and sentenced him to sixty months in the Department of Corrections. There was no objection from defense counsel. Smith was arrested on the outstanding capias on August 22, 2007, and was resentenced to the same sentence, nunc pro tunc.

There is a jurisdictional issue to consider because Florida Rule of Appellate Procedure 9.140(b) provides that a defendant may not appeal from a judgment entered on a plea of guilty. Appeals from guilty pleas and pleas of nolo contendere may only be taken when there is a violation of the plea agreement, if preserved by a motion to withdraw plea. Fla. R. App. P. 9.140(b)(2)(A)(ii). Here, no motion to withdraw plea was filed by Smith, but this Court has determined that, in a circumstance like this, jurisdiction may still exist where the record on its face establishes ineffective assistance of trial counsel. Barber v. State, 901 So. 2d 364 (Fla. 5th DCA 2005).

In Barber, the parties reached a plea agreement in which the state agreed to recommend that the defendant be sentenced to fifteen years’ incarceration in state prison as a habitual felony offender. The parties further agreed that the defendant would be sentenced at a later date in order to give him time to visit his mother and the State time to notify the victim and invite her to be present at sentencing. The defendant was released from custody until sentencing. The defendant, however, failed to appear at sentencing. Eventually, he was arrested and sentencing was rescheduled. With no objection by his trial counsel, the trial court sentenced the defendant to a greater sentence than was agreed to by the negotiated plea. The defendant did not file a motion to withdraw plea.

Despite his failure to file the appropriate motion, this court concluded that we had jurisdiction because the transcript and the written plea agreement reflected that there was, in fact, no express agreement concerning the consequences attendant upon the failure of the defendant to appear at sentencing. Neither release from custody, nor the consequences of the failure to return for the scheduled sentencing was a specific term of the plea agreement. Under such circumstances, if the trial court could not honor the specified terms of the plea agreement and sentence, the court should have allowed him to withdraw his plea. We said that the defendant’s trial counsel was ineffective for failing to move to withdraw the plea.²

Generally, in Florida when a judge determines that he cannot honor the terms of an earlier plea bargain, the defendant must be given the opportunity to withdraw his plea. E.g., Brown v. State, 245 So. 2d 41 (Fla. 1971). Thus, in cases such as the present one, where a defendant requests he remain free on bond until sentencing, it must be determined whether that request is part of the plea agreement. See Payne v. State, 624 So. 2d 815 (Fla. 4th DCA 1993). The supreme court held Quarterman v. State, 527 So. 2d 1380 (Fla. 1980) that, where a furlough and an enhanced sentence for failure to appear in court at a later time are part of the plea agreement, a court is justified in imposing the enhanced sentence after the defendant fails to appear in court, without giving him an opportunity to withdraw his plea. In contrast, when an enhanced sentence for failure to appear in court at a later time is not part of the negotiated plea, a court must allow the defendant an opportunity to withdraw the plea before it imposes the more severe sentence. See Henson v. State, 977 So. 2d 736 (Fla. 2d DCA 2008); Payne, 624 So. 2d at 816. Nesmith v. State, 374 So. 2d 1139 (Fla. 2d DCA 1979).

Here, the terms set out by the trial court were not part of the plea agreement. The trial court accepted Smith’s plea before articulating what would occur if Smith failed to appear at sentencing. Thus, Quarterman does not control. Nor was there a subsequent agreement between the trial court and Smith that a greater sentence could be imposed if Smith failed to appear for sentencing. Compare Parker v. State, 446 So. 2d 250 (Fla. 5th DCA 1984). Neither Smith nor his counsel was asked whether the risk of a greater sentence was an acceptable condition and neither expressly agreed to it. See Nesmith. Smith’s acknowledgment that he understood does not constitute agreement to the terms. Thus, as in Barber, Smith should have been given the opportunity to withdraw his plea if the trial court was unwilling to abide by the terms of the plea agreement.

Accordingly, we reverse and remand for Smith to move to withdraw his plea or accept his sentence. Barber, 901 So. 2d at 366.

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ., concur. ORFINGER, J., concurs in part and dissents in part, with opinion.

—————

Notes:

1. His counsel stated that Appellant had a wife and five children and needed the time to clear up some “family stuff.”

2. The Second District Court of Appeal followed Barber Taylor v. State, 919 So. 2d 669 (Fla. 2d DCA 2006), and the appellate court decided the case despite the failure of the defendant to file the proper motion. Recently, the Second District said that a situation might arise where it would not be as obvious that a defendant would wish to withdraw his plea, making it difficult on the face of the record to find indisputable evidence of ineffectiveness of counsel. See Henson v. State, 977 So. 2d 736 (Fla. 2d DCA 2008). However, even though the Henson court concluded that ineffectiveness was not apparent on the face of the record, it affirmed without prejudice to allow the defendant to seek to withdraw his plea by filing a motion pursuant to rule 3.850 if he desired.

ORFINGER, J., concurring in part and dissenting in part

I concur with the majority’s resolution of the jurisdictional issue. However, I respectfully dissent from the majority’s conclusion that Smith should be allowed to withdraw his plea instead of facing the enhanced sentence that he received when he failed to appear at his original sentencing hearing.

As the majority concludes, a furlough was not part of Smith’s plea agreement with the State. However, I believe there was a subsequent agreement between the trial court and Smith authorizing a sentence beyond the plea agreement if Smith failed to appear for sentencing.

At the plea hearing, after Smith was placed under oath, in relevant part, the following discussion took place:

THE COURT: So, is he ready to plea this morning? Is that —

[DEFENSE COUNSEL]: Judge, if possible, Mr. Smith was asking for just a — a couple of weeks, he could take care of all his family obligations and then he’ll be ready to check himself into jail. His wife is here. They have five children, Judge. He just wants a chance to square everything up `cause he knows he [sic] going to Ocala for a couple of years. And he knows it’s an in-house program. And his wife is here in Osceola County, so, he just wanted a little bit of time to clear up some family stuff.

THE COURT: Let’s — I want to take the plea this morning then and we’ll set off sentencing.

[DEFENSE COUNSEL]: Okay.

….

THE COURT: Okay, I’m [sic] want to take the plea this morning, though, and we’ll set off sentencing.

[DEFENSE COUNSEL]: Okay, Okay. Great.

….

And Mr. — Judge, we would ask that Mr. Smith be allowed one week to turn himself in to the Osceola County jail, so he can tie up all of his family affairs with his wife and everything.

THE COURT: I’m going to set him for a sentencing day.

[DEFENSE COUNSEL]: Okay.

THE COURT: So he’s — I’m going to set it about August 17th, is that adequate? That’s two weeks, a little more than two weeks.

[DEFENSE COUNSEL]: Does that give you enough time?

THE DEFENDANT: Yes, sir.

[The plea colloquy ensues.]

….

THE COURT: All right. I find that you are alert and intelligent and you understand the charges to which you are pleading to. You appreciate the consequences of entering your plea. You are doing so freely and voluntary based upon your lawyer’s advice, with whom you say you are satisfied.

I find that there is sufficient factual basis for the plea, and I accept the plea at this time.

All right. I am going to discharge your bonds, allow you to remain out of custody until August 17th at 9:00 A.M. If you fail to appear at that sentencing hearing, I can do one of two things. I can either issue a capias for your arrest or I can go ahead and sentence you in absentia without you present, is what that means, and if you fail to appear that these pleas stand but the plea agreement does not.

Do you understand that?

THE DEFENDANT: I understand, your honor.

THE COURT: So, you’re — what does that mean to you; that you need to show up?

THE DEFENDANT: Of course.

THE COURT: And if you fail to appear, I can sentence you up to 15 years in prison in the one case. Do you understand that?

THE DEFENDANT: Yes, I do, your honor.

THE COURT: Okay. All right, anything further in these cases then?

[DEFENSE COUNSEL]: No, Judge. Thank you, Judge….

THE DEFENDANT: Thank you.

As the majority correctly observes, a trial court may not unilaterally impose additional conditions on a defendant after it has formally accepted the plea agreement without the acquiescence of the defendant or the defendant’s counsel. Payne v. State, 624 So. 2d 815, 816 (Fla. 4th DCA 1993); Pumphrey v. State, 502 So. 2d 982, 983-84 (Fla. 1st DCA 1987). However, additional conditions may be imposed as a valid modification of the plea agreement if ratified by the defendant’s clear and unequivocal understanding and acceptance of the terms. Fambro v. State, 581 So. 2d 199, 201 (Fla. 4th DCA 1991).

The case now before us seems quite similar to what occurred Briggs v. State, 682 So. 2d 1151 (Fla. 5th DCA 1996). In that case, the court accepted Briggs’s plea of guilty to various charges. He was then granted a furlough and ordered to return seven days later for sentencing. When he failed to do so, the court imposed a sentence exceeding the sentence under the plea agreement. In upholding the enhanced sentence, this Court concluded that “the timing of the court’s acceptance of the plea… before Briggs assented to the failure to appear agreement, is not determinative, when they occur so close in time as to be obviously dependent one upon the other. This scenario is not logically distinguishable from the one discussed in Quarterman [v. State, 527 So. 2d 1380 (Fla. 1988)].” Briggs, 682 So. 2d at 1153.

Reading the plea transcript in its totality, I believe that Smith understood and accepted the conditions of his furlough, and like Briggs, the timing of the court’s acceptance of the plea is not determinative. The plea hearing was a work in progress. The majority’s analysis parses the proceedings too finely, placing a premium on form at the expense of substance.

Share This

LOUIS WYATT BRANSON, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D07-1630.

District Court of Appeal of Florida, Fifth District.

Opinion filed August 29, 2008.

Appeal from the Circuit Court for Marion County, David B. Eddy, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

After a jury trial in which he represented himself, Branson was convicted of possession of cocaine, possession of drug paraphernalia, and attachment of an unassigned tag to a motor vehicle. He was sentenced to four years imprisonment on the cocaine charge and to time served on the misdemeanor offenses.

On appeal, Branson contends that the trial court erred by accepting his waiver of the right to appointed counsel in the absence of any warning that if convicted at trial and sentenced to prison, he might be subject to indefinite civil commitment under the Jimmy Ryce Act¹ upon completion of his prison sentence. We affirm.

Branson was convicted of a sexual battery in 1977. As a result, he faces the possibility of civil commitment under the Jimmy Ryce Act upon completion of his sentence, even though his current charges did not involve a sexual offense. Ward v. State, 33 Fla. L. Weekly S45 (Fla. Jan. 17, 2008), as revised on denial of rehearing, 33 Fla. L. Weekly S564 (Fla. July 03, 2008). While Faretta² requires a trial court to make a defendant aware of the dangers and disadvantages of self-representation, it does not require that a defendant be apprised of each and every potential collateral consequence of an adverse judgment. Potts v. State, 698 So. 2d 315 (Fla. 4th DCA 1997), approved, 718 So. 2d 757 (Fla. 1998).

We agree with the State that the other issues raised by Branson were not preserved for appeal.

AFFIRMED.

MONACO and COHEN, JJ., concur.

—————

Notes:

1. §§ 394.910-932, Fla. Stat.

2. Faretta v. California, 422 U.S. 806 (1975).

Share This

LARRY D. ODUM, Appellant,
v.
STATE OF FLORIDA, Appellee.Case No. 5D07-1148.

District Court of Appeal of Florida, Fifth District.

Decision filed August 29, 2008.

Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.

James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

PALMER, C.J. and SAWAYA, J., concur.

COHEN, J., concurs specially, with opinion.

COHEN, J., concurs specially, with opinion.

I agree with the panel’s decision to affirm Odum’s convictions. I write, however, to address the admission of the arresting officer’s report because I deem the error preserved. Odum was charged with felony DUI and refusal to submit to chemical or physical testing. The report memorialized the testifying officer’s observations made during the time of the stop. In this case, that report was inadmissible hearsay, and the trial court erred in allowing it as evidence. See Burgess v. State, 831 So. 2d 137 (Fla. 2002). Nonetheless, after reviewing the evidence presented at trial, I conclude there is no reasonable possibility that the error affected the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). Thus, the error was harmless.

Share This