Buckbee v. State

• Citation: 378 So.2d 39
• Decision Date: 04 December 1979
• Docket Number: No. 78-2322,78-2322
• Parties: Frank S. BUCKBEE, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 39

378 So.2d 39

Frank S. BUCKBEE, Appellant, v. The STATE of Florida, Appellee.

No. 78-2322.

District Court of Appeal of Florida, Third District.

Dec. 4, 1979.

Rehearing Denied Jan. 8, 1980.

Hirschhorn & Freeman and Joel Hirschhorn, Miami, for appellant.

Jim Smith, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.

Before PEARSON, HUBBART and SCHWARTZ, JJ.

PEARSON, Judge.

The defendant, Frank S. Buckbee, pled guilty to the unlawful possession of seven ounces of cannabis. He was placed on three years probation. Thereafter, the trial judge, for reasons hereafter discussed, amended the order of probation to include a nine-month jail sentence. This appeal seeks review of the order modifying probation. We reverse.

Following the guilty plea, the trial court ordered a pre-sentence investigation conducted. Subsequently, on June 26, 1978, after reading the pre-sentence investigation report which described the defendant's involvement in a separate, then-pending, federal prosecution for conspiracy to import a large quantity of marijuana, the trial court agreed with the defendant's counsel that possession of the small amount of marijuana involved in this case did not in and of itself justify any long-term imprisonment, as the defendant had no prior felony convictions. The trial court placed the defendant on three years probation, and also attempted to " . . . reserve the right to sentence (the defendant) to jail time, if, in fact, he is found guilty of the Federal offense . . . ." ¹

The court then withheld adjudication of guilt and placed the defendant on three years probation. The original order of probation contained no reservations or special conditions. The trial judge then ordered the defendant to return after the disposition of the federal trial.

The federal charges against the defendant were never prosecuted after the federal court granted the defendant's motion to suppress the evidence. In granting the motion, the U.S. district judge made findings of fact which purported to describe the defendant's participation in an importation of marijuana scheme. On this basis and despite the fact that there was never any adjudication of guilt in the federal case, the state trial court herein, sua sponte, amended the order of probation to include a nine-month jail sentence, nunc pro tunc to the probation imposed five months earlier.

We hold that the trial judge did not have jurisdiction to amend the order placing the defendant on probation by increasing the severity of the punishment, i. e., the imposition of a condition requiring jail time. Thus, on June 26, 1978, the trial judge entered an order which formally placed the defendant on probation and listed ten conditions of probation, which are those regularly used by the trial judge in almost every case where a defendant is sentenced to probation and no special condition is attached. This order was final and there was no right, nor could one be reserved, to add a new condition to the probation, unless the defendant violated a term of his probation and was granted a hearing on violation of probation. See Fla.R.Crim.P. 3.790(b); and Hines v. State, 358 So.2d 183 (Fla.1978).

The State's position that the defendant agreed to the existence of a right in the trial judge to amend the order of probation is an attractive argument because a defendant ought not be allowed to take advantage of an error which he himself induced. See Gagnon v. State, 212 So.2d 337 (Fla. 3d DCA 1968). But the argument must fail because of the underlying principle that jurisdiction may not be conferred upon a judge by agreement of the parties. See Cancela v. State, 147 Fla. 500, 2 So.2d 859 (1941). In addition, as appears from this record, the defendant was not granted a hearing on the issue of whether the trial judge's attempted reservation of jurisdiction included a situation where the defendant was not found guilty in the federal court but was, in the opinion of the judge who dismissed the charges, actually involved in illegal activities. We know of no authority for a judge, upon dismissing the case, to enter a finding of guilty. However, we will not remand the cause for a hearing on this issue inasmuch as we find that we must reverse upon the jurisdictional issue. Perhaps what occurred in this case is proof of the rule that in matters concerning the fundamental principles of justice and liberty of individuals, the record must be absolutely clear on the question of the legality of the proceedings. Cf. the basic tenets in Knapp v. Schweitzer, 357 U.S. 371, 378, 78 S.Ct. 1302, 2 L.Ed.2d 1393 (1958).

Thereupon, the sentence entered on the 4th of December, 1978, modifying the order of probation of June 26, 1978, so that, as a special condition of probation, the defendant should be confined in the Dade County Jail for a term of nine months is reversed, and it is directed that the defendant be released from custody under the terms of the order granting probation and fixing the terms thereof entered on June 26, 1978.

Reversed with directions.

SCHWARTZ, Judge (dissenting).

When Buckbee appeared for sentencing pursuant to his previously entered and to-this-day-unchallenged guilty plea, the trial judge was fully authorized to sentence him to the state prison or to county jail time as a condition of probation, as recommended both by the prosecution and the officer who conducted the pre-sentence investigation. Had the court then done so, the defendant would have no grounds even of arguable complaint. The trial judge, however, in effect, offered to give Buckbee a break in the form of the obvious advantage of delaying such a sentence until the outcome of the federal proceeding. Both the defendant and his counsel explicitly and eagerly accepted that offer.

The record clearly demonstrates the desire of the court to impose, as a "condition" of the initial probation, the requirement that Buckbee be shown, as the judge said, to have "had no part" in the federal case a condition which was not fulfilled. The transcript even more plainly shows the acquiescence and agreement of the defendant to that condition, an agreement which expressly renounced the very claim of illegality which he sought to raise only after the condition of probation had been violated:

THE COURT: I will sentence the defendant to three years probation with reservation of my right to modify that probation As a result of what happens in the Federal case and set it for report November 20 at 1:30 to make a determination.

I do not want to punish him unfairly if he had no part, but if he did, I will punish him.

MR. MILLER (prosecutor): If we may, can we get a stipulation from the defendant and counsel that sentence within Your Honor's discretion is amenable to them. Otherwise, I am not certain of the legality of the sentence.

THE COURT: I am putting him on three years probation with a special condition pending the disposition of the Federal case.

MR. MILLER: I am not sure of the legality. I would just prefer to be on the safe side.

THE COURT: Okay.

MR. BRANDT (defense counsel): No objection.

THE COURT: We can withhold the sentence altogether until then.

MR. BRANDT: If Your Honor wishes.

THE COURT: I would rather put him on three years probation but reserve the right to modify it.

I want him on probation now so that he does not get in more trouble.

Do you have an objection to my sentencing him in this manner?

MR. BRANDT: No, sir.

THE COURT: Sir, have you got an objection with it?

MR. BUCKBEE: No, sir.

THE COURT: Report back here November 20 at 1:30, sir.

Hopefully, you will have a disposition of the Federal trial by then, favorable or unfavorable, but if not, bring it to the attention of the Court, and I will withhold adjudication, Again reserving the right to adjudicate from what the Federal results indicate. (e.s.)

Under these circumstances, I believe that affirmance...