Batista v. State, 4D05-4315.

• Decision Date: 21 March 2007
• Docket Number: No. 4D05-4315.,4D05-4315.
• Citation: 951 So.2d 1008
• Parties: Daniel BATISTA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

951 So.2d 1008

Daniel BATISTA, Appellant, v. STATE of Florida, Appellee.

No. 4D05-4315.

District Court of Appeal of Florida, Fourth District.

March 21, 2007.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.

STONE, J.

The issue on appeal is whether the trial court erred in denying a motion for an evidentiary hearing following the state's unilateral termination of Batista's pre-trial intervention (PTI). We affirm.

After Batista was charged, he entered into a deferred prosecution agreement placing him in a PTI program. The terms of the agreement allowed the state attorney during the period of deferred prosecution, to revoke or modify the conditions of Batista's deferred prosecution by:

(1) Changing the period of deferred prosecution.

(2) Prosecuting him for this offense if he violated any of these conditions.

(3) Voiding this agreement should it be determined that he had a prior record of adult criminal felony convictions.

The agreement required Batista to submit to random drug testing, maintain his employment, pay his supervision costs, refrain from possessing or carrying weapons, and avoiding drugs and ingesting intoxicants in excess. If Batista complied with all conditions, no criminal prosecution would be instituted for the charged offense. Upon signing the agreement, Batista admitted guilt.

The state's motivation for revoking Batista's participation in the PTI program is not disclosed in the record.

Batista sought a "full" evidentiary hearing to require the state to prove that he had "willfully and materially" violated PTI. Batista claimed a right to such a hearing based on principles of due process, the applicable Florida Statute providing for PTI, and principles of contract law. Batista also negotiated a plea with the state, and at the plea hearing, the following exchange occurred:

[DEFENSE COUNSEL]: Now, this was a violation of PTI.¹ Our office just filed a motion for evidentiary hearing on the violation; we also have a resolution of the case, but I would like to ask that the motion be heard by the court to see if he willfully and substantially violated this PTI.

THE COURT: . . . I don't do these here. . . .

* * *

THE COURT: . . . [Recognized that another judge] granted evidentiary hearings to force the State to prove their basis for a PTI violation.

[DEFENSE COUNSEL] Yes, sir.

THE COURT: I, in fact, do not believe that you're entitled to one.

Following rejection of his motion, Batista accepted the plea agreement, adding that he would like to reserve the right to appeal the denial of his motion, to which the trial court responded, "okay."

We recognize that denial of a hearing on a matter concerning termination of pre-trial intervention is not a dispositive order and, thus, not appealable under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i).

As this court recognized in Pena v. State, 913 So.2d 1203, 1204 (Fla. 4th DCA 2005),

In this context, an "issue is legally dispositive `only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.'" Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001) (quoting Zambuto v. State, 731 So.2d 46, 46 (Fla. 4th DCA 1999)).

[T]he denial of the motion to participate in Drug Court is not a legally dispositive order to the extent necessary to confer jurisdiction in this court. Even if this court reversed and remanded for the court to grant Pena's entry into the program, a trial may still yet be necessary if, for some reason, Pena opts out of the program and re-enters the regular criminal justice system. See generally Mullin v. Jenne, 890 So.2d 543 (Fla. 4th DCA 2005). There is no great expectation or guarantee that reversal would absolutely foreclose the possibility of a future trial on this specific charge.

Here, it cannot be said that reversal would result in dismissal of the charges or require a conclusion that the state could not prevail at trial. Rather, the sole result would be a hearing at which the state might well demonstrate, by whatever standard is deemed applicable, that there was a reason for its revocation. There is nothing in this record, or even a claim, to the contrary. We also note that this is not a case in which the state and court agree that the issue is dispositive.

Nevertheless, as the trial court authorized the reservation of the right to appeal, and, as we noted in Pena, since courts may not be in agreement as to the jurisdiction issue, and as it may be reviewable by petition, we address the merits.

PTI programs are a creation of the legislature. State v. Board, 565 So.2d 880, 881 (Fla. 5th DCA 1990). Section 948.08, Florida Statutes, allows certain first offenders or persons convicted of not more than one non-violent misdemeanor or third-degree felony to be placed in PTI. There are two types of diversionary programs; the first excludes drug and prostitution crimes, and the second concerns those charged with drug, prostitution and other related offenses. Batista was entered into the first type of PTI program, notwithstanding that one of his charges was drug possession.

The Florida statute clearly grants the state attorney the right to make a final determination as to whether the prosecution will continue. § 948.08(5)(c), Fla. Stat. (2004). We reject Batista's due process claims, which rely primarily on out-of-state opinions, most of which arise under other circumstances, such as those involving violations of probation or parole, or rely on the specific wording of PTI statutes different from that found in Florida's.

The Florida Supreme Court has recognized that a decision regarding admission to a PTI program is at the sole discretion of the state, is a prosecutorial function, and is non-reviewable. Cleveland v. State, 417 So.2d 653, 653 (Fla.1982). In Virgo v. State, 675 So.2d 994 (Fla. 3d DCA 1996), the Third District held that termination from such a program is also non-reviewable.

In State v. Rubel, 647 So.2d 995 (Fla. 2d DCA 1994), the Second District reversed a trial court's dismissal of charges against a defendant after his termination from a PTI program. There, however, Rubel knew why the state terminated his participation in the program.

In Board, the Fifth District held that the trial court's grant of specific performance resulting in reinstatement of a defendant to pre-trial intervention status was outside its authority. 565 So.2d at 881. There, the court recognized that the statute,...