STATE OF FLORIDA v. EDWARD FIDDEMON ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
EDWARD FIDDEMON,
Appellee.
No. 4D19-0438
[May 27, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan Alspector, Judge; L.T. Case No. 10-17981 CF10A.
Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellee.
GERBER, J.
The state appeals from the circuit court’s order: (1) granting the
defendant’s motion to dismiss the state’s violation of probation affidavit
against him arising from a 2010 case, and (2) declaring his probation in
the 2010 case as having been completed while he was incarcerated on a
2012 case. The state primarily argues the circuit court erred because the
defendant had to complete his prison terms on both the 2010 and 2012
cases before his probation term began on the 2010 case. We agree with
this argument. Therefore, we reverse the circuit court’s order.
Procedural History
The 2010 and 2012 cases were resolved separately through negotiated
pleas occurring nine months apart, rather than in one sentencing event.
The circuit court first disposed of the 2010 case. In that case, the
defendant pled no contest to two charges in exchange for being sentenced
to three years in prison to be followed by two years on probation, with the
sentences on both charges to be served concurrently.
Nine months later, the same circuit court judge disposed of the 2012
case. In that case, the defendant pled no contest to three charges in
exchange for being sentenced to eight years in prison to be served
concurrently on all three charges and, in the circuit court’s words, “with
the sentence you’re presently serving in [the 2010 case].” During the
hearing, the state acknowledged the 2012 case’s concurrent eight-year
prison terms would be served “concurrent with the case he’s already been
sentenced on,” i.e., the 2010 case. However, no one at the hearing
discussed or asked how the 2012 case’s eight-year prison term would
affect the 2010 case’s two-year probation term.
In 2018, the Department of Corrections released the defendant from
prison and placed him on two years’ probation for the 2010 case. Later
that year, the state filed an affidavit alleging the defendant violated his
probation.
The defendant filed a motion to dismiss the 2010 case’s violation of
probation affidavit. The defendant argued that after he completed the
2010 case’s concurrent three-year prison term, his two-year probation
term immediately began as a matter of law. Thus, the defendant argued,
he completed the 2010 case’s two-year probation term while serving the
middle portion of the 2012 case’s eight-year prison term.
The state filed a memorandum opposing the defendant’s motion. The
state primarily argued the 2010 case’s two-year probation term had been
tolled as a matter of law until the defendant had completed the 2010 case’s
three-year prison term and the 2012 case’s eight-year prison term.
The circuit court (a successor judge) held a non-evidentiary hearing,
during which the parties relied on the same arguments which they had
raised in their respective motion and memorandum.
The circuit court granted the defendant’s motion to dismiss the 2010
case’s violation of probation affidavit. The circuit court also declared the
2010 case’s two-year probation term as having been completed while the
defendant served the 2012 case’s eight-year prison term. Relying on case
law holding that a sentence must be served without interruption, the
circuit court reasoned the 2010 case’s three-year prison term and two-
year probation term could not be separated by the last five years of the
2012 case’s eight-year prison term.
The circuit court then attempted to distinguish case law holding that
probation is tolled while a prison term is completed. According to the
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circuit court, those cases involved courts in different jurisdictions
imposing sentences in unrelated cases. Here, on the other hand, the same
judge imposed both the 2010 and 2012 sentences, and mentioned the
2012 case’s eight-year prison term would be served concurrently “with the
sentence you’re presently serving in [the 2010 case].”
This appeal followed. The state again primarily argues the 2010 case’s
two-year probation term had been tolled as a matter of law until the
defendant had completed the 2010 case’s three-year prison term and the
2012 case’s eight-year prison term.
The defendant responds that after he completed the 2010 case’s
concurrent three-year prison term, his two-year probation term
immediately began as a matter of law. Thus, the defendant argues, he had
completed the 2010 case’s two-year probation term while serving the 2012
case’s eight-year prison term, and he was no longer on probation in 2018.
Our Review
Because we have been asked to review an alleged sentencing error
under section 948.012(1), Florida Statutes (2010), our review is de novo.
See State v. Flynn, 95 So. 3d 436, 437 (Fla. 4th DCA 2012) (“Because a
motion to correct a sentencing error involves a pure issue of law, our
standard of review is de novo.”); State v. Dorsett, 158 So. 3d 557, 560 (Fla.
2015) (“The interpretation of a statute is a purely legal matter and therefore
subject to the de novo standard of review.”) (citation omitted).
1. Framing Our Analysis of Section 948.012(1), Fla. Stat. (2010)
The 2010 version of section 948.012(1), Florida Statutes, provided:
Whenever punishment by imprisonment for a misdemeanor or
a felony, except for a capital felony, is prescribed, the court,
in its discretion, may, at the time of sentencing, impose a split
sentence whereby the defendant is to be placed on probation
or, with respect to any such felony, into community control
upon completion of any specified period of such sentence which
may include a term of years or less. In such case, the court
shall stay and withhold the imposition of the remainder of
sentence imposed upon the defendant and direct that the
defendant be placed upon probation or into community
control after serving such period as may be imposed by the
court. The period of probation or community control shall
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commence immediately upon the release of the defendant from
incarceration, whether by parole or gain-time allowances.
§ 948.012(1), Fla. Stat. (2010) (emphasis added). 1
As emphasized above, section 948.012(1) uses three different phrases
to refer to when a defendant is to commence a probation term after
completing a prison term: (1) “upon completion of any specified period of
such sentence which may include a term of years or less”; (2) “after serving
such period as may be imposed by the court”; and (3) “immediately upon
the release of the defendant from incarceration.”
Those three phrases are easy to reconcile and apply as having one
meaning when the defendant’s sentence involves a single prison term to
be followed by a single probation term. That is, once the defendant has
completed the prison term and has been released, the defendant’s
probation term immediately commences.
However, those three phrases are not as easy to reconcile and apply in
this case, where the defendant was sentenced to serve a two-year
probation term after the 2010 case’s three-year prison term, at a time
when he was still serving the 2012 case’s eight-year prison term.
Taking section 948.012(1)’s first and second emphasized phrases in
isolation – that a defendant is to be placed on probation “upon completion
of any specified period of such sentence which may include a term of years
or less” and “after serving such period as may be imposed by the court” –
seemingly would have required the 2010 case’s two-year probation term to
1 The current version of section 948.012(1) contains minor amendments from
the 2010 version, none of which are material to this case. See § 948.012, Fla.
Stat. (2019) (“Whenever If punishment by imprisonment for a misdemeanor or a
felony, except for a capital felony, is prescribed, the court may, at the time of
sentencing, impose a split sentence whereby the defendant is to be placed on
probation or, with respect to any such felony, into community control upon
completion of any specified period of such sentence which may include a term of
years or less. In such case, the court shall stay and withhold the imposition of
the remainder of sentence imposed upon the defendant and direct that the
defendant be placed upon probation or into community control after serving such
period as may be imposed by the court. Except as provided in s. 944.4731(2)(b)
and subsection (6), Tthe period of probation or community control shall
commence immediately upon the release of the defendant from incarceration,
whether by parole or gain-time allowances.”) (strikethrough and underling added
to show amendments).
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have commenced immediately after the defendant completed the 2010
case’s three-year prison term.
On the other hand, taking 948.012(1)’s third phrase in isolation – that
a defendant is to be placed on probation “immediately upon the release of
the defendant from incarceration” – seemingly would have required the
2010 case’s two-year prison term to be tolled until after the defendant had
completed both the 2010 case’s three-year prison term and the 2012 case’s
eight-year prison term.
Our duty, however, is not to view any one or more of section
948.012(1)’s three clauses in isolation. As our supreme court held in State
v. Knighton, 235 So. 3d 312 (Fla. 2018):
[W]e will not look merely to a particular clause in which
general words may be used, but will take in connection with
it the whole statute . . . . Adverting to our catalogue of rules of
statutory construction,
[w]e are required to give effect to every word, phrase,
sentence, and part of the statute, if possible, and words
in a statute should not be construed as mere
surplusage. Moreover, a basic rule of statutory
construction provides that the Legislature does not
intend to enact useless provisions, and courts should
avoid readings that would render part of a statute
meaningless.
Id. at 316 (citation and internal quotation marks omitted).
Applying those principles, our supreme court already has analyzed
section 948.012(1)’s predecessor statute, containing the exact same
language. The supreme court’s analysis guides our conclusion here.
2. The Florida Supreme Court’s Guidance in Analyzing the Statute
In Horner v. State, 617 So. 2d 311 (Fla. 1993), the defendant entered a
plea on three separate cases and was sentenced to concurrent prison
terms followed by concurrent probation terms on each case. Id. at 312.
While on probation, the defendant committed new crimes, and the state
sought to revoke probation. Id. At the revocation hearing, the trial court
sentenced the defendant to longer concurrent prison terms in the first two
cases. Id. Following imprisonment, the defendant was to serve a probation
term for the second case followed by a consecutive probation term for the
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first case. Id. These probationary periods were to be followed by four
consecutive longer probationary terms for the third case. Id.The defendant appealed, arguing her sentence violated section
948.012(1)’s predecessor, section 948.01(8), Florida Statutes (1989). Id.Specifically, the defendant argued the trial court’s imposition of the second
case’s probation term created a time gap between the first case’s prison
term and probation term, thereby violating section 948.01(8). Id.The supreme court found the defendant’s argument unpersuasive. Id.The supreme court framed the issue as whether section 948.01(8)
“prohibits a separation between incarceration and probation as to each
case of a multiple-case sentence, or merely bars a period of freedom
between portions of an individual’s overall sentence.” Id. (emphasis added).
The supreme court concluded the latter interpretation was correct. Id.The supreme court began its reasoning by encapsulating section
948.01(8)’s pertinent words and phrases as follows:
Whenever ... the court ... at the time of sentencing, impose[s] a
split sentence whereby the defendant is to be placed on
probation ... upon completion of any specified period of such
sentence[,] ... [t]he period of probation ... shall commence
immediately upon the release of the defendant from
incarceration....
Id. The supreme court then concluded its reasoning as follows:
The statute requires that the incarcerative portions of the
sentencing be completed before the non-incarcerative portions
begin. A probationary term that falls between or interrupts an
incarcerative sentence or sentences is illegal. …
The immediacy requirement of the statute necessitates a
correspondence between the incarcerative and probationary
terms, and is not based upon an individual case, but upon
one sentencing event. The statute defines split sentencing
with regard to the sentencing that the trial court is imposing
for all cases against the defendant. The preclusion of a time
gap can reasonably be read to bar only a gap between release
from incarceration on all counts and probation. We hold that
when there is one sentencing that includes incarceration and
either community control or probation on a variety of counts or
cases, a probationary split sentence does not create gap time
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so long as community control or probation immediately follows
incarceration.
Id. at 312-13 (emphases added; internal citations and quotation marks
omitted).
3. Applying Our Supreme Court’s Reasoning to the Instant Case
Our supreme court’s reasoning in Horner applies here. Giving effect to
section 948.012(1)’s “every word, phrase, sentence, and part of the
statute,” Knighton, 235 So. 3d at 316, we conclude the 2010 case’s two-
year probation term was tolled as a matter of law until after the defendant
had completed both the 2010 case’s three-year prison term and the 2012
case’s eight-year prison term.
Our conclusion complies with Horner’s mandate that “the incarcerative
portions of the sentencing be completed before the non-incarcerative
portions begin.” 617 So. 2d at 312. In other words, our conclusion does
not create an impermissible time gap between the 2010 case’s three-year
prison term and two-year probation term.
We acknowledge one factual distinction between Horner and the instant
case. Horner involved “one sentencing event,” that is, “one sentencing that
includes incarceration and either community control or probation on a
variety of counts or cases.” Id. at 313. The instant case, however, involved
two sentencing events. That is, the circuit court first disposed of the 2010
case, then nine months later, the same circuit court judge disposed of the
2012 case.
However, we do not consider this factual distinction of “one sentencing
event” versus “two sentencing events” to change this appeal’s outcome.
Rather, the fact that this appeal involves two sentencing events better
supports the state’s argument. The later-imposed 2012 case’s prison term
prevented the 2010’s case’s probation term from commencing immediately
after the defendant completed the 2010 case’s prison term. To hold that
the defendant completed the 2010 case’s probation term during the 2012
case’s prison term would be inconsistent with the rehabilitative concept of
probation which presupposes that the probationer is not in prison. If
anyone is to be held responsible for the defendant having to serve the 2010
case’s probation term after having completed the 2012 case’s prison term,
it is the defendant, who committed the offenses leading to the 2012 case’s
prison term.
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Thus, we conclude the successor judge erred in granting the
defendant’s motion to dismiss the state’s violation of probation affidavit
against him in the 2010 case, and declaring his probation in the 2010 case
as having been completed while he was incarcerated on the 2012 case.
4. Our Sister Courts’ Support for Our Conclusion
Our sister courts have issued opinions involving very similar facts and
holdings which support our conclusion in the instant case. Although some
of these cases contain minor factual distinctions to the instant case, we
do not consider any of these factual distinctions to be dispositive.
The first such case was Porter v. State, 585 So. 2d 399 (Fla. 1st DCA
1991), which we examine in detail. In Porter, the appellant was sentenced
in one county to a thirty-month prison term, to be followed by a two-year
probation term. Id. at 399. Seven months later, the appellant was
sentenced in a second county on three additional cases to one five-year
and two nine-year prison terms, to run concurrently with each other but
consecutively to the first county’s sentence. Id.The appellant served the first county’s prison term and the second
county’s prison term consecutively as ordered. Id. Upon the appellant’s
release from prison, he argued in the first county’s court that the first
county’s probation term commenced immediately after he completed the
first county’s prison term, and thus was completed while he was serving
the second county’s prison term. Id. at 399-400. According to the
appellant, commencing the first county’s probation term only after his
release on the second county’s prison term would transform the first
county’s sentence into an unlawful intermittent sentence. Id. at 400.
The first county’s court ruled the appellant was still subject to the first
county’s probation term, reasoning:
It is well settled that a defendant cannot serve a prison term
and be on probation simultaneously. The subsequently-
imposed sentences from [the second county] prevented the
[first county’s] probationary terms from commencing
immediately upon completion of [the first county’s] prison
terms. This result, however, does not create ex post facto an
illegal intermittent sentence. The [appellant’s] legal split
sentences in [the first county] … were interrupted by a
subsequently-imposed prison sentence from [the second
county]. To hold otherwise would be inconsistent with the
rehabilitative concept of probation which presupposes that
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the probationer is not in prison confinement. Any term of
probation presumed to run when the [appellant] cannot be
supervised would be a nullity … [I]n the instant cases, the
actions of the [appellant] (that is, the commission of offenses
for which he received the [second county’s] sentences)
resulted in the interruption of [the first county’s] sentences.
Id.The First District affirmed, reasoning:
[T]his case involves unrelated sentencing orders, rendered
at different times in different counties, with the result that
appellant’s intervening criminal activity and consequent
sentences, which are unchallenged here, effected [sic] the
interruption of his sentence. …
Relying upon Delk v. State, 510 So. 2d 1209 (Fla. 2d DCA
1987)[,] and Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985),
appellant further argues that he is entitled to credit against
[the first county’s probation term] for the time served in prison
on the [second county’s] sentences. He asserts that since the
[second county’s] prison terms extended beyond the [first
county’s] probationary term … he is entitled to release from
[the first county’s] probationary term because that term would
have expired while he remained in prison on the second
county’s] sentences .…
… [I]n recognition of the sanctity of a [trial court’s]
jurisdiction and authority to lawfully dispose of cases before
[it], without the interference of unrelated sentencing orders,
we decline to apply those holdings, which involve sentences
imposed by the same trial judge at the same time, to the
instant case which involves two sentencing orders, which are
unrelated in time, place and forum.
Id. at 400-01.
Porter’s reasoning has continued to be relied upon in more recent
district court cases involving similar facts:
• State v. Savage, 589 So. 2d 1016, 1018 (Fla. 5th DCA 1991) (the
defendant was sentenced on two cases to a prison term to be
followed by a probation term; while serving the prison term, the
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defendant was sentenced in another county to a prison term
“consecutive to any sentence currently being served”; after being
released, the defendant was charged with violating the first two
cases’ probation; the defendant filed a rule 3.850 motion, alleging
the first two cases’ probation term had expired during the later
case’s prison term; the trial court erred in granting the motion;
“Simple logic would seem to dictate that, where a defendant is
incarcerated in another jurisdiction, a probationary period from an
unrelated sentence would be tolled since a probationary term should
not be allowed to expire simply because a defendant has decided to
incur new prison time as a result of a separate and distinct offense.”)
• Bradley v. State, 721 So. 2d 775, 775-76 (Fla. 5th DCA 1998) (while
the defendant was incarcerated on one charge, he was sentenced on
an unrelated charge to one year of community control to be followed
by one year of probation; after his release from incarceration, he was
charged with violating the terms of his community control; the trial
court properly rejected the defendant’s argument that his
community control and probation terms had expired during his
incarceration, because those terms were tolled during his
incarceration).
• Crawley v. State, 787 So. 2d 886, 887 (Fla. 2d DCA 2001) (affirming
sentence where the defendant was sentenced in one case to a prison
term to be followed by a probation term, then was sentenced in a
second unrelated case in the same county to a prison term to be
served consecutively to the first case; pursuant to Porter, “We ...
determine that [the defendant] will serve the sentence of
incarceration from [the first case] and the consecutive sentence of
incarceration from the [second case], to be followed by the
probationary term also imposed in the earlier [first case].”).
• Schurman v. State, 847 So. 2d 569, 570 (Fla. 1st DCA 2003) (“It is
well established that a person cannot be sentenced to simultaneous
prison and probation. Consequently, although the incarcerative
portion of [the defendant’s] sentence … may have expired prior to
his release from prison … the probationary portion of that sentence
was tolled while he remained in prison on other sentences, and it
did not begin to run until appellant was released …. Therefore, his
probationary sentence … was in effect at the time he violated
probation, and the trial court properly denied [his] claim of
ineffective assistance of counsel.”) (internal citations omitted).
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• Foster v. State, 889 So. 2d 951, 952 (Fla. 5th DCA 2004) (affirming
order summarily denying rule 3.800(a) motion where the defendant
received a prison term to be followed by a probation term in one
circuit, and received in another circuit a prison term “to be served
concurrently to any other sentence he is presently serving”;
sentences were not illegal because, where a defendant receives
separate sentences from different courts at different times, “the
probationary portion of the sentence that completes its incarcerative
portion at first is tolled until the imprisonment portion of the latter
sentence is complete”).
The reasoning of Porter and its progeny apply equally to the instant
case. Here, the later-imposed 2012 case’s prison term prevented the
2010’s case’s probation term from commencing immediately after the
defendant completed the 2010 case’s prison term. The defendant, by his
conduct, bears the responsibility for this outcome.
We acknowledge one factual distinction between the Porter line of cases
and the instant case. Porter and its progeny all involve the sentencing
orders of two different judges, whereas the instant case involves the
sentencing orders of the same judge.
However, we do not consider this factual distinction of “the same judge”
versus “two different judges” to be dispositive. The more significant facts
in the instant case are that the 2010 case and the 2012 case were
unrelated and were disposed of at different times. We recognize that the
circuit court, when issuing the 2012 sentencing order, stated the 2012
case’s prison term would be served “concurrent with the case he’s already
been sentenced on,” i.e., the 2010 case. However, the circuit court was
not specific regarding whether it was referring to the 2010 case’s prison
term, the 2010 case’s probation term, or both. We choose to interpret the
circuit court’s statement in such a manner as to uphold the sentences in
both the 2010 case and the 2012 case.
5. Our Precedent Upon Which Defendant Relies is Distinguishable
The defendant relies upon two of our prior cases – Hatton v. State, 689
So. 2d 1195 (Fla. 4th DCA 1997), and Wright v. State, 47 So. 3d 972 (Fla.
4th DCA 2010) – in support of his argument. However, both cases are
distinguishable.
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a. Hatton v. State
In Hatton, the appellant was sentenced in a single case involving two
counts. 689 So. 2d at 1195. On Count I, the appellant was sentenced to
three months in the county jail to be followed by two years on probation.
Id. On Count II, the appellant was sentenced to one year in the county jail
to be followed by three years’ probation. Id. The sentences were to run
concurrently. Id. Therefore, the first nine months of probation on Count
I was to be served simultaneously with the last nine months of jail on
Count II. Id.
We reversed the defendant’s sentences to the extent the sentences
imposed simultaneous periods of incarceration and probation, and
remanded for correction. Id. We reasoned:
Since Horner holds that the statute requires the
incarcerative portions of the sentencing be completed before
the non-incarcerative portions, and applies to sentencing on
all counts as one “sentencing event,” it follows that the
incarcerative portions of all counts must be completed before
the probationary portion of any count begins. This conclusion
is supported by the court’s prior statement that “[t]he
underlying concept of probation is rehabilitation rather than
punishment and presupposes the fact that probationer is not
in prison confinement.” Bernhardt v. State, 288 So.2d 490,
495 (Fla. 1974).
Hatton, 689 So. 2d at 1195 (emphasis added).
Hatton is distinguishable from the instant case because here, the
sentencings did not occur in one case on all counts as “one sentencing
event.” Rather, the instant case involved two unrelated cases which were
disposed of at different times, that is, “two sentencing events.” Thus, the
instant case more closely resembles Porter and its progeny, as described
in the section above.
b. Wright v. State
The other fourth district case upon which the defendant here relies,
Wright, also involves “two sentencing events,” but is distinguishable for a
different reason. In Wright, one court sentenced the appellant to a twenty-
four month probation term. 47 So. 3d at 973. Five months later, a second
court in a different circuit sentenced the appellant on an unrelated charge
to a thirty-six month prison term. Id. The second court expressly
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designated the appellant’s prison term as concurrent to the first case’s
probation term. Id.A month after the first case’s probation term ended, the state filed a
violation of probation affidavit in that case. Id. The appellant moved to
dismiss the affidavit, arguing the first court had no jurisdiction to consider
the affidavit because the alleged violation occurred after the probation
term ended. Id. The first court denied the appellant’s motion and
adjudicated him guilty of the violation. Id.We reversed and remanded for dismissal of the affidavit. Id. Treating
the issue as one of jurisdiction, we concluded that because the first case’s
probation term ended before the alleged violation occurred, the appellant
could no longer be punished under the first case. Id.The state nevertheless argued the time period from the first case’s
probation term during which the appellant was serving the second case’s
prison term should have been tolled, that is, not counted as time served
on probation. Id. However, we rejected that argument, reasoning in part:
Nothing in the record suggests that the offense for the
unrelated charge was committed after the sentence of
probation was imposed. Also plainly [the appellant] had
already commenced serving the probation six months earlier
when he was sentenced later on the unrelated charge.
Even more important, the sentencing judge in the later case
explicitly made that imprisonment concurrent to the probation,
not consecutive to it. To deem the period of probation tolled
while he served time on the unrelated charge would, in effect,
make that confinement consecutive to probation, contrary to
the actual sentence imposed.
. . . [T]he statute governing probation makes no mention of
tolling a probationary period that had already commenced
because of the later imposition of sentence on an earlier
unrelated offense, itself made concurrent with the probation.
Id. at 973-74 (emphasis added).
Wright is distinguishable from the instant case. In the instant case, the
defendant had not commenced serving the 2010 case’s probation term
when he was sentenced on the 2012 case’s unrelated charge. Thus, the
2010 probation term was not being interrupted. We again recognize that
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the circuit court, when issuing the 2012 sentencing order, stated the 2012
case’s prison term would be served “concurrent with the case he’s already
been sentenced on,” i.e., the 2010 case. However, the circuit court was
not specific regarding whether it was referring to the 2010 case’s prison
term, the 2010 case’s probation term, or both. As stated above, we choose
to interpret the circuit court’s statement in such a manner as to uphold
the sentences in both the 2010 case and the 2012 case.
Conclusion
Based on the foregoing, we reverse the circuit court’s order granting the
defendant’s motion to dismiss the state’s violation of probation affidavit
against him arising from a 2010 case, and declaring his probation in the
2010 case as having been completed while he was incarcerated on a 2012
case. We remand for the circuit court to: (1) deem the 2010 case’s two-
year probation term as having commenced on the date when the defendant
was released from the 2012 case’s prison term; and (2) permit the state to
proceed on the 2010 case’s alleged violation of probation.
The other arguments which the state raises in support of reversal, and
which the defendant raises in support of affirmance, lack merit and do not
require further discussion.
Reversed and remanded for proceedings consistent with this opinion.
LEVINE, C.J., concurs.
CIKLIN, J., dissents with opinion.
CIKLIN, J., dissenting.
I respectfully disagree with the majority. Understandably, the
defendant seeks the benefit of his carefully constructed plea agreement
which culminated in a probation sentence that was to run concurrently
with a prison sentence with the bargained for exchange being that any
probationary terms were to be subsumed by the agreed upon prison
sentence.
At the same time, the state was also bound by the plea agreement.
Guynn v. State, 861 So. 2d 449, 450 (Fla. 1st DCA 2003) (“The negotiated
plea agreement placed obligations on both parties.”). The state benefited
from the plea by being able to dispose of both cases without the expense
and time of holding trials. The state was obligated to honor the agreement
of allowing the defendant to serve his sentences concurrently, or
otherwise, it should have challenged the concurrent sentences and allowed
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the defendant to renegotiate his plea. See State v. Simons, 22 So. 3d 734,
736-37 (Fla. 1st DCA 2009) (recognizing that it is a settled principle of
criminal procedure that courts may force the government to honor a plea
agreement); Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994)
(“If on remand the state is unwilling to accept concurrent prison terms,
defendant should be allowed to withdraw his plea and be subject to trial,
but with the opportunity to negotiate a new plea.”).
Here, the two sentences involved the same judge and the same state
attorney’s office. The 2012 case existed at the time the parties entered
their arm’s length plea agreement on the 2010 case. With the
acquiescence of the state, the trial court expressly imposed the sentence
in the 2012 case on a charge that had already existed prior to the
negotiated settlement in the 2010 case with the record-confirming
agreement to run concurrently. Of important note, the offense in the 2012
case was not a new offense that was committed subsequent to the plea in
the first case but was actually an existing offense, that was refiled and
thus, by virtue of an automated clerical system, ended up with a
chronologically subsequent case number. In other words, this was not a
case in which the defendant incurred new prison time as a result of a new
offense. The parties were already well aware of all the charges the
defendant was facing at the time that both sentences in both cases were
imposed.
Thus, the caselaw cited by the state and majority (involving tolled
supervision) simply does not apply particularly because those cases
involved sentences that arose in different counties. That is, in my opinion,
the proverbial misapplied apples and oranges comparison to which I
cannot ascribe.
Had the sentencing judge who imposed both sentences and the parties
that were involved in both negotiations intended for the defendant to be
on some form of supervision following his release, one would expect that
they would have said so. Similarly, had the parties intended for the
sentences to run consecutively, one would hope that the record would have
reflected that. Instead, this record contains language of a concurrent
sentence. “Where the language of a sentence is clear [the court has] no
power to change it by speculating that the trial judge meant something
else.” Roy v. State, 207 So. 2d 52, 55 (Fla. 2d DCA 1967) (quoting Falagan
v. Wainwright, 195 So. 2d 562, 563 (Fla. 1967)).
Simply put, the state is bound by the plea agreement. See Guynn, 861
So. 2d at 450. The state benefited from the product of the negotiated plea
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by its ability to dispose of both cases without the expense and time of
holding trials.
In point in fact, if either party had timely appealed the sentence, it
arguably would have been set aside and the defendant would presumably
have been allowed to withdraw his plea. Thus, the state is seeking a
remedy, which the majority embraces, that it could not have obtained on
appeal: the refashioning of a duly agreed upon sentence, with everyone’s
eyes wide open.
I respectfully dissent.
* * *
Not final until disposition of timely filed motion for rehearing.
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