Bernhardt v. State

• Decision Date: 09 January 1974
• Docket Number: No. 43335,43335
• Citation: 288 So.2d 490
• Parties: Gideon BERNHARDT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 490

288 So.2d 490

Gideon BERNHARDT, Appellant, v. STATE of Florida, Appellee.

No. 43335.

Supreme Court of Florida.

Jan. 9, 1974.

William W. Fernandez of Fernandez & Scarito, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., and Nelson E. Bailey and Stephen R. Koons, Asst. Attys. Gen., for appellee.

ROBERTS, Justice.

This appeal has been transferred to us by the District Court of Appeal, Fourth District, pursuant to Florida Appellate Rule 2.1 subd. a(5), 32 F.S.A., to review an order of the Circuit Court of Orange County which revoked appellant's probation and sentenced him to eighteen months confinement with credit for time served in the county jail pending the probation revocation hearing. The order revoking probation inferentially passed on the constitutionality of Section 949.10, Florida Statutes, F.S.A., since petitioner's motion to dismiss the warrant for violation of probation was based on the ground that said statute is unconstitutionally void for vagueness and the trial court specifically denied appellant's motion to dismiss on constitutional grounds and found this statute to be constitutional. Furthermore, the trial judge stated that the proceeding before it was pursuant to Section 949.10, Florida Statutes, F.S.A., and subsequently entered the order revoking probation. We have jurisdiction of this cause pursuant to Article V, Section 3(b)(1), Florida Constitution, F.S.A. (1973). See Evans v. Carroll, 104 So.2d 375 (Fla.1958); Harrell's Candy Kitchen v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959); Demko's Gold Coast Trailer Park v. Palm Beach County, 218 So.2d 745 (Fla.1969).

On February 3, 1972, appellant entered a plea of guilty to the offense of possession of LSD and was placed on probation for a term of three years in accordance with Chapter 948, Florida Statutes, F.S.A. On December 19, 1972, an affidavit for violation of probation was filed against appellant for violation of condition H of his probation, to-wit: live and remain at liberty without violating any law, in that the appellant was arrested on December 15, 1972 and charged by the Orange County Sheriff's Office with Count 1, possession of narcotic paraphernalia; Count 2, possession of narcotic drug; Count 3, possession of stolen property, in violation of Florida Statute 949.10, F.S.A. A warrant for his arrest was issued December 19, 1972, and on that same date appellant appeared in open court for arraignment and entered a plea of not guilty to violation of condition H of his probation. On December 21, 1972, appellant appeared for an evidentiary hearing pursuant to Section 949.11, Florida Statutes, F.S.A. Prior to testimony being taken, appellant's attorney orally made a motion to dismiss the warrant for violation of probation in this cause on the grounds that the statute (F.S. § 949.10, F.S.A.) upon which this information or warrant is based is unconstitutionally void for vagueness and ambiguity in that, appellant's counsel urged, it does not apprise the defendant of what crime or what he has to avoid in order to avoid enactment of the penalties of that statute and in that defendant cannot defend or avoid the prohibitions of the act since a police officer could arrest him without cause and such arrest would constitute a violation of this statute. As further grounds for said motion to dismiss the warrant for violation of probation, appellant's counsel stated that section 949.10 is in violation of defendant's Florida and Federal constitutional rights to due process of law in that it does not provide him with an opportunity to be heard within any reasonable period of time and because during the 10-day period mentioned in Section 949.11, he is not allowed to receive any bail until after the hearing F.S. § 949.12, F.S.A.).

In response to said motion to dismiss the charge of violation of probation, the prosecution pointed out that the statute in question has built-in protections in that, inter alia, the statute itself calls for a hearing within ten days from the date of arrest rather than denying a hearing and that this statute is simply an instrument by which a person can be brought back to jail and then if not given a hearing within the required time or the arrest is determined to be invalid, he is eligible to be released immediately.

The trial court, at this stage of the proceedings and prior to the taking of testimony, regarding the propriety of probation revocation, denied the motion to dismiss on constitutional grounds.

The state's two witnesses were then called and their testimony taken. Appellant took the stand and testified on his own behalf. Pertinent to points on appeal posited by appellant other than the constitutionality vel non of Section 949.10, are the following facts appearing in the transcript of the hearing relative to search of appellant's automobile, seizure of narcotic paraphernalia therefrom, and arrest of appellant for possession of narcotic paraphernalia and narcotic drug. At the hearing, Deputy Sheriff Russell Calamia, assigned to the special investigation division of the Orange County Sheriff's Office, testified that at the time he searched appellant's auto and arrested him on a felony charge, he was executing a search warrant, the validity of which is not contested, of the premises. The search warrant described in detail the dwelling to be searched including the yard and curtilage thereof. While executing the search warrant, Calamia observed appellant drive up and park his car off the street on the yard in front of the premises designated in the warrant. Appellant testified that he resided at this location. Deputy Sheriff Calamia testified, inter alia, that in the execution of an affidavit and search warrant on the premises of 1229 West 18th Street, he and Agent Speaker searched appellant's automobile which was parked on the yard in front of the house and within the curtilage wherein they found narcotic drug (cannabis) in plain view behind the front passenger seat on the floor and found two items of narcotic paraphernalia and a letter addressed to appellant in the glove compartment; that after the search of appellant's car, they placed appellant under arrest for possession of cannabis and possession of narcotic paraphernalia and read him his Miranda rights. The record before this court supports appellee's assertion that no pre-trial motion to suppress evidence concerned in the revocation hearing was filed pursuant to Rule 3.190(b), Florida Rules of Criminal Procedure, 33 F.S.A. Furthermore, appellee properly states that the record nowhere reflects that any testimony or evidentiary items were introduced into evidence during the state's case over appellant's objection on grounds that the arrest was illegal, and that the legality of the arrest was not challenged by the appellant until after the state had completed its presentation of the case. Appellant after testimony of the state's witnesses orally made a motion for directed judgment on the ground that there had been no violation of probation which motion the trial court denied. At this juncture, the trial court reminded counsel for appellant that this was a probation revocation hearing pursuant to Section 949.10 and was not a hearing on a motion to suppress, that such a motion could later be raised on his new charges, but that this hearing was being held to determine whether appellant did or did not violate his probation previously entered on February 3, 1972. Appellant was then given an opportunity by the court to explain away the accusation against him. After appellant completed his testimony, the prosecutor acknowledged that the state had the burden to show that appellant had violated a condition of his probation, in this case had violated the law. At the conclusion of the evidentiary hearing, the trial court found that the state had proven that appellant had violated condition H of the order entered February 3, 1972, revoked appellant's probation and sentenced him to eighteen months confinement with credit for time served in county jail pending the probation revocation hearing.

The primary question presented by appellant for our determination is the constitutionality vel non of Section 949.10, Florida Statutes, F.S.A., which provides, as follows:

'Subsequent felony arrest of felony parolee or probationer prima facie evidence of violation.--The subsequent arrest on a felony charge, in this state, of any person who has been placed on parole or probation following a finding of guilt of any felony, or a plea of guilty or nolo contendere to any felony, shall be prima facie evidence of the violation of the terms and conditions of such parole or probation. Upon such arrest the parole agreement or probation order shall immediately be temporarily revoked, and such person shall remain in custody until a hearing by the parole and probation commission or the court.'

Other pertinent statutory provisions, provide:

'949.11 Hearing.--Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to § 947.23 or § 948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of § 947.23 or § 948.06 notwithstanding. Failure of the commission or the court to hold the hearing within ten days from the date of arrest shall cause the immediate release of such person from incarceration on the temporary revocation.

'949.12 Immediate temporary revocation; bail not allowed.--A person whose parole or probation has been temporarily revoked pursuant to § 949.10 shall not be admitted to bail prior to the hearing provided for in § 949.11.

'948.06 Violation of probation; revocation; modification; continuance.--(1) Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation supervisor may arrest such probationer without warrant wherever found, and forthwith shall...