Altman v. State
| Decision Date | 12 April 2023 |
| Docket Number | 3D21-1184,3D21-1185,3D21-1186 |
| Parties | Charlie Dennis Altman, Appellant, v. The State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Monroe County, Lower Tribunal Nos. 18-443-A-K; 18-100-A-K; 18-793-A-K Mark Wilson Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez Assistant Attorney General, for appellee.
Before FERNANDEZ, C.J., and LOGUE and HENDON, JJ.
Charlie Dennis Altman appeals the trial court's order revoking probation and imposing sentence. We affirm because there is competent substantial evidence in the record to support the trial court's determination that Altman willfully and substantially violated the conditions of his probation and, therefore, the trial court did not abuse its discretion in revoking Altman's probation. Furthermore, the trial court did not consider uncharged conduct as a basis for revoking Altman's probation, and it did not err in denying Altman's request to be resentenced by a different judge.
Altman was charged with aggravated stalking in violation of section 784.048 (case no. 2018-CF-100-AK); grand theft in violation of sections 812.014(1) and 812.014(2)(c) (case no 2018-CF-443-AK); organized scheme to defraud in violation of section 817.034, and four counts of cashing or depositing item with intent to defraud in violation of section 832.05(3) (case no. 2018-CF-793-AK). On October 10, 2019, Altman entered a plea of nolo contendere pursuant to a negotiated plea agreement. Altman was adjudicated guilty in all three cases and placed on five years' probation, with the probationary periods to run concurrently.
The plea agreement required Altman to leave and remain out of Monroe County from October 12, 2019, at 12:00 p.m. until the successful completion of his probation. During sentencing, the trial court discussed this condition with the prosecutor, defense counsel, and Altman and it was indicated that Altman would be flying out of Monroe County after checking in with the local probation office following his release from jail. Altman stated the flight left the following day. Altman contends it was understood by all that he would be flying to his family home in South Carolina, but this was never expressed during the sentencing hearing, nor was it discussed whether Altman would continue to be supervised by Monroe County, whether his supervision would be transferred to South Carolina, or whether he could reside in South Carolina pending any potential transfer.
On November 15, 2019, an affidavit of violation of probation was filed alleging that Altman violated his probation by leaving his county of residence without the consent of the probation officer. The affidavit alleged that Altman left Palm Beach County his county of residence, without the consent of the probation officer and entered Horry County, South Carolina on November 10, 2019. The violation report stated that Altman contacted his probation officer on November 12, 2019, and advised he had to leave his apartment because his roommate got into a fight. Altman advised the probation officer he was in South Carolina and probation officer told him he could not be out of state without permission. The probation officer instructed him to return to Florida and report to the probation office by November 13, 2019, at 2:30 p.m. Altman reported as instructed.
The probation officer noted in the violation report that Altman wanted to move to South Carolina to be with his mother. The probation officer reported that she was in the process of "submitting the transfer request at this time" and recommended no further action. The probation officer noted, however, that if Altman violated supervision again for any reason, she would submit a full violation recommending a warrant be issued. The trial court nevertheless issued a warrant based on this initial violation.
On January 21, 2020, an amended affidavit of violation of probation was filed. The amended affidavit alleged that Altman violated probation a second time by changing his residence without the consent of the probation officer. The affidavit explained that on January 9, 2020, the probation officer learned that Altman moved from his last known place of residence in Palm Beach County on or about December 9, 2019, without the consent of the probation officer and that his whereabouts were unknown. An addendum to the prior violation report explained that on January 8, 2020, Altman's roommate advised officers serving his warrant that Altman went to South Carolina about one month earlier. The addendum noted Altman's whereabouts were unknown and listed his location as "Absconder."
This addendum did not indicate that the probation office was submitting the transfer request but rather stated that "[o]n 11/22/2019, Supervisor Wright spoke with the offender regarding transferring to South Carolina, she instructed him to come in the following Wednesday at 10:00 a.m. to fill out the application to transfer, the offender never showed up." The addendum also stated that the probation officer spoke with Altman on December 16, 2019 and instructed him to report for the month and he did not show up. The probation officer attempted to call Altman, but his phone was disconnected, and she received no answer when she tried to reach Altman's mother. The probation officer recommended Altman's probation be revoked. The trial court issued an amended warrant reflecting this second violation on February 4, 2020 and revoked the prior warrant.
On February 15, 2021, a second amended affidavit of violation of probation was filed adding a third violation. The affidavit alleged Altman violated his probation by leaving his county of residence without the consent of the probation officer because he left Palm Beach County without the consent of the probation officer and entered Broward County as evidenced by his arrest in Broward County on February 8, 2021, pursuant to the February 4th warrant. The probation officer once again recommended Altman's probation be revoked.
A probation violation hearing was held on April 29, 2021, and Altman admitted he violated his probation as alleged in the second amended affidavit. Altman explained that when he was placed on probation following his plea, he reported to the local probation office as instructed and told the probation officer that he wanted his supervision transferred to South Carolina. The Monroe County probation officer told him that he could transfer supervision within Florida, based on the trial court's order that he leave Monroe County, and then request a transfer to South Carolina. Once in Palm Beach County, Altman requested this transfer. The Palm Beach County probation officer told Altman she would request the transfer but that it would not be done immediately.
Altman then alleged that he stayed with his friend in Palm Beach County until one weekend when some illegal activity occurred. Not wanting to violate his probation and unable to contact the probation office because it was the weekend, Altman alleged he flew to his mother's house in South Carolina. Altman called his probation officer after arriving in South Carolina and advised her of the situation. The probation officer told Altman this was a violation and instructed him to return to Florida and report to her office the following day. Altman complied and said the probation officer told him to stay in a hotel for a night or two while she put in a request to transfer his supervision to South Carolina. Altman stated the probation officer never told him he could not leave Florida again after he completed the paperwork for the transfer, so he returned to South Carolina. Once in South Carolina, Altman contacted the local probation office, but it advised they had not received any transfer paperwork.
Altman remained in South Carolina awaiting the processing of his transfer paperwork. Then, in February of 2020, Altman learned of the February 4th warrant. Altman stated that he reached out to his prior attorney, the probation office in Key West, the prosecutor, and sought new counsel to get the violation resolved. He alleged that the pandemic and resulting shutdowns in March 2020 thwarted his attempts to resolve the violation. He was ultimately arrested in Broward County in February 2021 on the outstanding warrant. Altman alleged he was back in Florida to turn himself in when he was arrested.
Altman apologized to the trial court and explained that he was trying his best to comply with the order to leave Monroe County and keep everyone notified of his whereabouts. Defense counsel argued that Altman committed three low-risk technical violations that did not warrant a revocation and lengthy prison sentence. Counsel noted that Altman did not commit any new crimes while on probation and despite Altman perhaps not taking the appropriate steps to relocate to South Carolina, "at some point he did contact probation and tell them where he was." Counsel asked the court to reinstate his probation so he could return to South Carolina. At a sidebar, defense counsel also advised the court that Altman was a cooperating witness in a separate murder case and argued that Altman's cooperation with the State should weigh in favor of reinstating his probation. The State asked the trial court to revoke Altman's probation and sentence him to the bottom of the guidelines, 62.625 months.
The trial court accepted Altman's admissions and found he willfully and materially violated the terms of his probation characterizing Altman's actions...
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