Adamo v. State, 85-2589
| Decision Date | 29 October 1986 |
| Docket Number | No. 85-2589,85-2589 |
| Parties | 11 Fla. L. Weekly 2289 Edmund Alfred ADAMO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Channing E. Brackey and David R. Smith, Fort Lauderdale, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
The appellant, an attorney, was initially charged, in two counts, with leaving the scene of an accident, and tampering with evidence. Based on an agreement with the state, he entered an open plea of guilty to the tampering charge. Following sentencing, the other count was nolle prossed in accordance with the pre-plea negotiations. At the sentencing the defendant was adjudged guilty and placed on five years' probation. As a special condition of probation he was ordered to make restitution to the victims of the accident.
The appellant contends that the penalty imposed is disproportionate to the crime, constituting a cruel and unusual punishment, and a violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. He also contends that the restitution is not a valid condition of his probation, and asks that it be stricken.
The state argues that the appeal must be dismissed because appellant, by his guilty plea and express waiver on the record, has lost his right to a direct appeal. We disagree with this contention. An alleged illegal sentence may be attacked either pursuant to Rule 3.850, Florida Rules of Criminal Procedure, or by appeal. See Wickett v. State, 467 So.2d 430 (Fla. 4th DCA 1985); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). See also Noble v. State, 353 So.2d 819 (Fla.1977). There is no reason to distinguish a challenge to a probation condition from any other claim of fundamental sentencing error.
The appellant's constitutional challenge is based on the perceived disproportionate burden of Bar discipline that he must face as a result of having been adjudicated guilty of a felony. His claim is based on the principles enunciated in Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), and Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). A criminal sentence must be proportionate to the crime for which the defendant has been convicted. Solem at 290, 103 S.Ct. at 3009. However, those cases, and the extensive body of law reviewed in Solem, are clearly distinguishable. There is obviously no relationship to the suspension or disbarment of an attorney under the Integration Rule and a criminal sentence, even if they do arise out of the same incident. Disciplinary action is simply not a criminal sentence. We conclude that the fact that the defendant may suffer suspension or disbarment following adjudication does not convert an otherwise valid sentence into a disproportionate one.
Appellant also contends that the trial court was without authority to require restitution as a condition of probation because the victims' losses were caused by the accident, and not by his removal or concealment of the automobile following the accident. See Fresneda v. State, 347 So.2d 1021 (Fla.1977). See also Grubbs v. State, 373 So.2d 905 (Fla.1979); Barnes v. State, 489 So.2d 1182 (Fla. 2d DCA 1986). However, we find those cases to be inapplicable. It is unfortunate that the appellant has not provided us with the transcript of the initial plea colloquy. However, it is apparent from a review of the sentencing proceedings that all of the participants in the plea contemplated that the court would have the option of including restitution as a condition of the defendant's probation. The defendant does not contend otherwise. The "victim" testified at the sentencing with respect to restitution, without objection by the appellant, for the purpose of enabling the court to consider the potential range of damages in determining the extent to which restitution would be made a part of the court's probation sentence. It should also be noted that in this case there is no contention that the damages were not caused by the defendant's conduct, only that they were not caused by the conduct contained in the elements of the...
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