Florida Criminal Law Opinions

prosequi of Count I. The trial court sentenced appellant in accordance with the plea agreement.

In the judgment and order of probation, the trial court included a “no early termination” condition. Appellant says this was done at the State’s request. Appellant identified this condition in the statement of judicial acts to be reviewed and appointed appellate counsel filed a motion to correct sentencing error to eliminate this condition.

This special condition was not included in the written plea agreement and was not orally pronounced at sentencing. The trial court denied the motion.

We agree that this is an invalid special condition of probation. The Department of Corrections ["DOC"] has discretion to recommend early termination under specified statutory conditions. The trial court cannot preempt the DOC’s statutory right to recommend early termination, nor could DOC’s decision to do so constitute a violation of probation condition. The State asserts that the early termination condition was merely an expression of the sentencing judge’s intent, rather than a true “condition.” If this were merely a statement of the trial court’s view, we would find no error, as there could be no misunderstanding that it might be binding on DOC or on the probationer. Here, it is specifically identified as a condition of probation. Appellant is entitled to have it removed from the judgment and order of probation.

Condition STRICKEN.

ORFINGER and LAWSON, JJ., concur.

At trial, the State presented eyewitness testimony that Johnson shot the victim in the leg after the two had engaged in an altercation outside a nightclub. In addition to finding Johnson guilty of aggravated battery with a firearm, the jury made special findings that: 1) Johnson possessed a firearm; 2) Johnson discharged a firearm; and

3) Johnson discharged a firearm and, as a result, caused great bodily harm and/or permanent disability and/or permanent disfigurement to the victim.

At the original sentencing hearing, the trial court pronounced a twenty-five year incarcerative sentence, stating:

Okay. Mr. Johnson, the minimum sentence that the court can impose in your case is 25 years incarceration. And I don’t wish to sentence you to anything greater than that.

* * *

Accordingly, Mr. Johnson, you’ll be adjudicated guilty, sentenced to 25 years incarceration with the Department of Corrections . . . .

The trial court’s subsequent written order reflected the twenty-five year sentence, but further provided that Johnson would serve a twenty year mandatory minimum term and that he would not be eligible for statutory gain time.

Johnson then filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his motion, Johnson challenged the imposition of the mandatory minimum term. The trial court denied the motion, found that as a result of a clerical error the written judgment incorrectly referenced a twenty year mandatory minimum term, and entered an amended judgment reflecting that Johnson would be required to serve twenty-five years in prison without eligibility for statutory gain time.

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On appeal, Johnson challenges the mandatory minimum part of his sentence on three different grounds. First, he contends that because the trial court failed to orally pronounce the mandatory minimum term at the original sentencing hearing, it was precluded by double jeopardy principles from subsequently doing so. Second, Johnson argues that the mandatory minimum term is illegal because the state failed to allege, and the jury failed to make a finding, that Johnson actually possessed or actually discharged a firearm. Third, Johnson claims that the jury’s finding that the discharge of the firearm had “caused great bodily harm and/or permanent disability and/or permanent disfigurement” did not permit an enhancement of the mandatory minimum term from twenty years to twenty-five years because the enhancement statute makes no reference to “permanent disability” or “permanent disfigurement.” We reject Johnson’s first two arguments, but find merit to his third claim.

Pursuant to section 775.087(2)(a)1.g., Florida Statutes (2007), any person who is convicted of an aggravated battery and “during the commission of the offense, such person actually possessed a ‘firearm’ . . . shall be sentenced to a minimum term of imprisonment of 10 years . . . .” The minimum sentence is increased to twenty years if, during the course of the commission of the crime, the offender discharged the firearm, section 775.087(2)(a)2., and to twenty-five years if, as the result of the discharge of the firearm, “death or great bodily harm was inflicted upon any person.” § 775.087(2)(a)3.

Section 775.087(2)(b) provides that the imposition of the minimum sentence called for by the above-referenced subsections is mandatory and that a defendant sentenced thereunder is not eligible for statutory gain-time or any form of discretionary

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early release, other than pardon or executive clemency, or conditional medical release under section 947.149, prior to serving the minimum sentence.

Johnson first argues that double jeopardy principles precluded the trial court from imposing the mandatory minimum term after he had already begun serving his sentence when this part of his sentence had not been orally pronounced at the original sentencing hearing. We disagree. As we recently held in Dunbar v. State, 46 So. 3d 81, 82 (Fla.

5th DCA 2010), the imposition of a mandatory minimum sentence under section

775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing. When an oral sentence does not include the applicable mandatory minimum sentence, it is an illegal sentence and, accordingly, subject to correction. Id. at 83. We further noted that it does not offend double jeopardy principles to resentence a defendant to a harsher term when the original sentence was invalid. Id.; see also State v. Scanes, 973 So. 2d 659 (Fla. 3d

DCA 2008); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005); State v. Strazdins,

890 So. 2d 334 (Fla. 2d DCA 2004); Allen v. State, 853 So. 2d 533 (Fla. 5th DCA 2003). We also reject Johnson’s suggestion that the state waived the mandatory minimum sentence. At the original sentencing hearing, the prosecutor requested the trial court sentence Johnson in accordance with the statute. The failure to call the trial court’s attention to its omission of the mandatory minimum provision during oral pro- nouncement of sentence does not reflect an intentional waiver. State v. Vanderhoff, 14

So. 3d 1185, 1189 (Fla. 5th DCA 2009).

Johnson next argues that the mandatory minimum portion of his sentence was illegal because the information failed to allege, and the jury failed to make a finding, that

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the defendant actually possessed or actually discharged a firearm. Johnson suggests that the jury could have concluded that someone else shot the victim and that he was only in constructive, not actual, possession of a firearm. We reject this argument. The information alleged that Johnson, “while in possession of a firearm, did actually and intentionally touch or strike [the victim] and in doing so, discharged a handgun . . . .” The jury found Johnson guilty of aggravated battery with a firearm “as charged in the information.” Johnson was the only person charged in the case and the “principal” instruction1 was not given, nor sought. The State did not make any allegations, present any evidence, or argue that anyone other than Johnson was the shooter. The only reasonable conclusion that can be reached from the jury’s verdict and special findings is that the jury found Johnson was in actual possession of the firearm and he actually discharged same. See Allen v. State, 799 So. 2d 284, 285 (Fla. 5th DCA 2001)

(“Appellant also contends that since there was no specific jury finding that appellant actually possessed a firearm during the carjacking, the mandatory minimum sentence cannot stand. We disagree. Here, there was only one perpetrator involved in the carjacking. Use of the firearm was made an element of the offense. By finding appellant guilty as charged, the jury necessarily found that a firearm was used and that appellant used it.”)

Johnson’s final argument is that the trial court erred in enhancing his mandatory minimum sentence from twenty years to twenty-five years because the special interrogatory submitted to the jury referenced the terms “permanent disability” and “permanent disfigurement” which are not set forth in section 775.087(2)(a)3. The State

1 Fla. Std. Jury Instr. (Crim.) 3.5(a) Principals.

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argues that any error in including these extra terms was harmless, contending that all permanent disabilities and permanent disfigurements constitute “great bodily harm.”

We reject the State’s argument. An examination of section 784.045(1)(a) leads to the conclusion that the Legislature has determined that not all permanent disabilities and permanent disfigurements constitute great bodily harm. That statute provides:

A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement . . . .

(Emphasis added). The use of the conjunction “or” strongly suggests that the Legislature did not find “great bodily harm” to necessarily include all permanent disabilities or disfigurements. Additionally, if all permanent disabilities and permanent disfigurements fell within the definition of “great bodily harm,” it would have been unnecessary for the Legislature to have included these terms in section 784.045(1)(a).

Statutes should be construed so as to give effect to all words in the statute, rather than to render them meaningless surplusage. Weeks v. Fla. Birth-Related Neurological, 977 So. 2d 616, 619 (Fla. 5th DCA 2008). Because not all permanent disabilities and permanent disfigurements fall within the definition of “great bodily harm,” we cannot conclude that the jury found that Johnson’s discharge of a firearm caused great bodily harm.2 Tucker v. State, 726 So. 2d 768 (Fla. 1999) (enhancement of sentence under section 775.087(1) must be supported by jury finding).

2 A example of an injury that a jury could reasonably find constituted permanent disfigurement, but not great bodily harm, would be a small scar. See, e.g., Gillman v. Gillman, 319 So. 2d 165 (Fla. 1st DCA 1975) (holding that 4.5 centimeter permanent scar on plaintiff’s forehead could be “permanent disfigurement” within meaning of

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AFFIRMED, in part; REVERSED, in part; REMANDED for Resentencing.

LAWSON and JACOBUS, JJ., concur.

investigator, testified that the loss caused by Robinson’s crimes was $519,416.40. The

State sought restitution in the amount of $519,416.40 and a reservation of jurisdiction to determine investigative costs and costs of prosecution.

Robinson was sentenced to community control home confinement until February

1, 2008, to allow time to deal with some medical problems. Robinson was also sentenced to fifteen years on counts I and II and twelve years on count III, all to be served concurrently. The court ordered restitution in the amount $519,416.40, payable through collection court. The trial judge ordered that Robinson report to the collection court, within thirty days after release from DOC, to be placed on a payment schedule.

Robinson filed a motion to set aside judgment, objecting to a lack of notice or an opportunity to present evidence prior to entry of the restitution order. Circuit Court Judge Bob Wattles granted Robinson’s motion, set aside the restitution judgment, and directed the State to file a motion with exhibits and set the matter for hearing, if necessary.

Two years later, on February 25, 2009, a different judge, without conducting a hearing, entered a final judgment against Robinson in the amount of $519,677.40. Robinson appealed and claimed it was error to enter the restitution judgment contrary to Judge Wattles’ prior order setting aside the amount of restitution in order to conduct a hearing.

The State concedes that the record does not show that an evidentiary hearing was ever conducted on restitution. As a result, the State agrees that, to the extent no hearing was conducted or a stipulation obtained prior to the entry of the February 2009 judgment, Robinson’s position has merit. Accordingly, we vacate the appealed order

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and remand for the trial court to conduct a hearing, after notice, before imposing restitution.

ORDER VACATED and REMANDED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.

denying his motion to withdraw plea. The State cross-appeals, challenging Smith’s sentence, which was a downward departure from the 15.4-month lowest permissible sentence indicated on Smith’s guidelines scoresheet. We conclude that the trial court did not abuse its discretion in denying Smith’s motion to withdraw his plea. However, because the trial court failed to state on the record valid reasons for imposing a downward departure sentence, we reverse.

When Smith entered his plea, the trial court agreed to sentence him to one year and one day in prison provided that he appear on time for sentencing and not incur any new charges in the interim. At the time, the prosecutor objected, noting that he was “unaware of any legal basis to depart in this case.” Prior to sentencing, Smith sought to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f). The trial court denied the motion because Smith’s basis for the motion was fully addressed prior to the entry of his plea. At that hearing, the State renewed its objection to Smith’s sentence, but the trial court imposed the agreed to sentence of one year and one day in prison.

Because Smith failed to show good cause why he should be permitted to withdraw his plea, the trial court did not abuse its discretion in denying his motion to withdraw plea. See Luedtke v. State, 6 So. 3d 653, 655 (Fla. 2d DCA 2009) (“Under rule 3.170(f), the trial court may, in its discretion, and shall, on good cause, at any time before sentencing, permit a plea of guilty or no contest to be withdrawn. Where less than good cause is shown, the trial court’s ruling will not be reversed absent an abuse of discretion.”). However, it was error for the trial court to impose a downward departure sentence over the State’s objections without stating valid reasons for the departure.

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See State v. McCray, 31 So. 3d 871, 872 (Fla. 3d DCA 2010); see also State v. Barnes,

753 So. 2d 605, 607 (Fla. 2d DCA 2000). Accordingly, we reverse the judgment and sentence and remand for the trial court to allow Smith to choose either to withdraw his plea or be resentenced within the sentencing guidelines. See State v. McKnight, 35 So.

3d 995, 998 (Fla. 5th DCA 2010).

We note the likelihood that neither party is well-served by the relief afforded in this opinion. Smith faces the possibility of a longer sentence than the one he is currently serving, and an overburdened system adds a case to its docket in what amounts to a dispute over a possible three-month difference in sentence length.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., Concur.

engaged in criminal activity. We affirm the revocation of probation order because there was sufficient, competent evidence in the record to support the trial court’s finding that

Mathis associated with persons engaged in criminal activity. However, we conclude that the trial court abused its discretion in finding that Mathis committed a burglary and remand the case for the trial court to strike its finding regarding the violation of condition five. See Miffin v. State, 19 So. 3d 377, 378 (Fla. 2d DCA 2009) (“We review a trial court’s revocation of probation under an abuse of discretion standard.”).1

The trial court found that Mathis violated condition five by committing the offense of burglary as a principal on June 2, 2008. “[I]n order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.” L.J.S. v. State, 909 So. 2d 951,

952 (Fla. 2d DCA 2005); see also § 777.011, Fla. Stat. (2008) (defining principal as a person who “commits any criminal offense against the state, . . . or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed”). A person cannot be convicted under the principal theory where the “evidence does not exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.” J.H. v. State, 370 So. 2d 1219, 1220 (Fla.

1979).

1There is no merit to Mathis’s claim that he is entitled to a new probation hearing because portions of the transcript of his taped interview with a detective are unintelligible, as he has not identified how he is prejudiced by the omitted portions of the interview. See Jones v. State, 923 So. 2d 486, 489 (Fla. 2006).

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As noted in Smith v. State, 502 So. 2d 77, 78 (Fla. 3d DCA 1987), and

A.Y.G. v. State, 414 So. 2d 1158, 1159 (Fla. 3d DCA 1982), evidence is insufficient to establish the requisite intent under the principal theory where the appellant is present at the scene of a burglary and, at the direction of the perpetrator of the burglary, drives the getaway car, because such evidence does not exclude the reasonable inference that the appellant did not know about the crime until after it had occurred.

Here, the State was required to prove by the greater weight of the evidence that Mathis committed the burglary. See Miffin, 19 So. 3d at 378. The only evidence of Mathis’s involvement in the burglary on June 2, 2008, were his statements to Detective John Berard. Mathis stated that he unlocked the sliding glass door at the back of his residence and let his wife’s nephews, Chris and Courtney, into the residence. Chris and Courtney had on backpacks when they entered the residence.

The most incriminating statement Mathis made to Detective Berard was that he “was accessory to it because I let them come through the back door and jump the fence and stuff like that.” However, there was no evidence that Mathis knew Chris and Courtney were going to commit a burglary that day or that he intended that they commit the burglary. See Smith, 502 So. 2d at 78 (holding that appellant’s probation was improperly revoked based on the finding that he committed burglary and robbery where the evidence did not exclude the reasonable inference that he did not know about the robbery until after it occurred, noting that a person cannot be convicted of a “substantive offense based on evidence which proves involvement only as an accessory after the fact”).

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The State argued that Mathis knew Chris and Courtney were committing burglaries when he let them in the residence because he knew that they were involved in a previous burglary involving a shotgun. We do not agree with the State that this evidence established Mathis knew Chris and Courtney had committed a burglary when he opened the sliding glass door for them on June 2, as the previous offense occurred about two weeks prior to the burglary at issue, there was no evidence that the two burglaries were connected, and there was no evidence that Mathis was aware of any other burglaries committed by Chris and Courtney. Because there was no evidence showing that Mathis had knowledge of the burglary on June 2 until after it had occurred or that he intended to assist in the commission of the crime, the trial court abused its discretion in finding him guilty under a principal theory. See J.H., 370 So. 2d at 1220.

However, there was sufficient, competent evidence to support the trial court’s finding that Mathis violated probation condition six by associating with people engaged in criminal activity. Accordingly, we affirm the revocation of Mathis’s probation based on his violation of probation condition six because this violation was sufficient to revoke probation, see Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009), but we remand for the trial court to strike its finding as to the violation of probation condition five.

It is not clear whether the trial court would have imposed the same sentence based solely on the violation of condition six. Accordingly, we vacate Mathis’s sentence and remand for reconsideration of the sentence. On remand, the trial court may impose the same sentence or exercise its discretion to impose a reduced

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sentence. See Johnson v. State, 890 So. 2d 490, 493 (Fla. 5th DCA 2004); Smith v.

State, 705 So. 2d 1033, 1034 (Fla. 3d DCA 1998).

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN and MORRIS, JJ., Concur.