Aponte v. State, No. 4D01-2476.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: HAZOURI, J.
• Citation: 810 So.2d 1008
• Parties: Fernando L. APONTE, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 4D01-2476.
• Decision Date: 06 March 2002

810 So.2d 1008

Fernando L. APONTE, Appellant,
v.
STATE of Florida, Appellee

No. 4D01-2476.

District Court of Appeal of Florida, Fourth District.

March 6, 2002.

810 So.2d 1009

Fernando L. Aponte, Polk City, pro se

Robert A. Butterworth, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.

HAZOURI, J.

Fernando Aponte pled nolo contendre to two counts of lewd, lascivious or indecent acts upon a minor and was sentenced on May 5, 1998. The plea agreement called for a downward departure sentence of probation. Victim injury points were not assessed because of the agreement for the downward departure sentence.

After Aponte violated probation, the trial court revoked his probation and sentenced him to nine years and eight months in the Department of Corrections. Aponte then filed a rule 3.800(a) Motion to Correct Illegal Sentence. The trial court denied the motion without prejudice to file a rule 3.850 motion for postconviction relief. Aponte appeals from an order dated May 23, 2001, which summarily denied his rule 3.850 Motion for Postconviction Relief.¹ Aponte raises six points on appeal but only two points warrant discussion.

At his sentencing for violation of probation, the trial court used a scoresheet that included victim injury points (sex penetration). Aponte asserts that he should be resentenced because the court improperly assessed victim injury points which were omitted at his original sentencing hearing through a plea agreement with the state. In its response, the state cites to Merkt v. State, 764 So.2d 865 (Fla. 4th DCA 2000), in support of its contention that upon a violation of probation, the trial court may assess victim injury points for the underlying offense even if the trial court did not assess such points at the time of the entry of the plea pursuant to the plea agreement.

In Merkt, the defendant pled guilty to two felonies, including lewd and lascivious assault on a minor. Id. at 866. The plea agreement called for two years in prison followed by two years community control and ten years probation. Id. No victim injury points were assessed on the scoresheet. Id. Subsequently, the court revoked the defendant's community control upon a violation and assessed victim injury points after an evidentiary hearing regarding victim injury. Id. The defendant challenged the assessment of the victim injury points and this court held that the trial court could properly assess the victim injury points. Id. at 866-67. However, Merkt makes no mention of a plea agreement excluding victim injury points. Aponte asserts that Merkt fails to address whether the trial court may assess victim injury

810 So.2d 1010

points at the revocation proceeding when the plea agreement for the underlying offense specifically called for no assessment of injury points. Aponte contends under these circumstances, upon violation of probation, a sentencing court is constrained by the terms of the plea agreement for the original offense. The trial court, however, is not so restrained. See Mulder v. State, 356 So.2d 870 (Fla. 4th DCA 1978)

In Mulder, the appellant entered a plea of guilty pursuant to a plea agreement that he would not receive more than two years in prison. Id. at 871. The trial court sentenced him to three years probation. Id. Upon violation of probation, the trial court sentenced the appellant to three years in prison. Id. In affirming the sentence, this court relied on section 948.06(1), Florida Statutes (1975), which states that after revocation of probation, the court may impose any sentence it may have imposed before placing the defendant on probation. Id. The Florida Supreme Court approved Mulder. See State v. Segarra, 388 So.2d 1017, 1018 (Fla.1980).

In Segarra, the defendant was charged with burglary, a second degree felony carrying a maximum sentence of fifteen years. Id. at 1017. Plea negotiations resulted in a plea of guilty with a five-year cap on the sentence. Id. After presentence investigation, the trial court sentenced the defendant to five years probation with two conditions, one of which the defendant violated. Id. The trial court revoked the defendant's probation and sentenced the defendant to fifteen years. Id. The Third District Court of Appeal reversed the trial court and held that the maximum sentence which the court could impose upon violation of probation was five years. Id. The district court pointed out that there had been an agreed maximum sentence of five years as a part of a plea negotiation which was accepted and approved by the defendant, the prosecutor and the judge. Id.

The supreme court noted the conflict between the third district's decision in Segarra and this court's opinion in Mulder. Id. at 1018. In quashing the third district decision, the court quoted the following language taken from the second district's decision in Johnson v. State, 378 So.2d 335 (Fla. 2d DCA 1980):

As between the two views, we opt for the position taken by the fourth district court of appeal. So long as the order of probation was within the terms of the agreement, the court has fulfilled the plea bargain. The events which bring about a revocation open a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.

Id. (quoting Johnson, 378 So.2d at 335-36). The supreme court held that when a defendant pleads guilty pursuant to a plea bargain and the trial court places him on probation, if he violates his probation, the trial court can sentence him to a term in excess of provisions of the original bargain. Id. Thus, as the state asserts, a trial court may assess victim injury points under these circumstances.

Unlike the concurring opinion, we find that the decisions in Kingsley v. State, 682 So.2d 641 (Fla. 5th DCA 1996) and Estrada v. State, 787 So.2d 94 (Fla. 2d DCA 2001) are distinguishable from our holding in the instant case. In Kingsley, the defendant appealed a final judgment and sentence entered following a violation of probation. 682 So.2d 641. The fifth district affirmed the conviction, but reversed and remanded for resentencing because a revised sentencing guideline scoresheet which reflected 40 points for severe victim injury was utilized rather...