Casterline v. State

• Decision Date: 03 October 1997
• Docket Number: No. 97-00981,97-00981
• Parties: 22 Fla. L. Weekly D2330 Robert Allen CASTERLINE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1071

703 So.2d 1071

22 Fla. L. Weekly D2330

Robert Allen CASTERLINE, Appellant, v. STATE of Florida, Appellee.

No. 97-00981.

District Court of Appeal of Florida,

Second District.

Oct. 3, 1997.

Rehearing Denied Oct. 29, 1997.

PER CURIAM.

Robert Casterline appeals the summary denial of his motion for postconviction relief in which he asserted that the trial court wrongfully revoked his probation in 1996 based upon a 1991 order which enhanced the conditions of his probation. We agree that the 1991 order is void because Casterline had not violated the terms of his probation. The court had no authority to change or enhance the terms of probation originally imposed in 1984.

In 1984, Casterline entered a plea of guilty to two counts of sexual performance by a child and was sentenced to 10 years' imprisonment followed by 15 years' probation. On July 10, 1991, an affidavit of violation of probation was filed which stated that Casterline was arrested for aggravated assault with a knife sharpener upon a minor. It was alleged that he had also violated the provisions of his probation because he had been instructed by his probation officer not to have contact with any minor children. ¹ On August 8, 1991, the court conducted a hearing and concluded that there had been no violation of probation.

At the conclusion of the hearing, defense counsel requested that Casterline be released on his own recognizance pending the criminal trial for the alleged aggravated assault. Although the state had no objection to Casterline's release, it requested that the terms of his probation be changed to prohibit contact with minors. Defense counsel objected and stated that the matter should be set for a hearing before the court at another time; however, he capitulated when the court indicated that it intended to schedule the hearing on the request for release at a future date. Counsel stated, "Judge, let me state this. Because my client needs to get out of jail, he needs to go to work, and he has previously told me that if the Court so desires to inform [sic] such a condition, that he would have no objections to it." The court noted, "So, it would be without objection by your client to modify the probation to require that he have no contact with minor children, that is anyone under the age of eighteen, without the presence of another responsible adult."

On August 8, 1991, an order entitled "Corrected Order of Modification of Probation" was entered which erroneously stated that Casterline had violated the terms and conditions of his probation. ² Further, the order required the conditions of probation to be modified to include the provision that Casterline have no unsupervised contact with children under the age of eighteen. Casterline's probation was revoked on April 27, 1995, and on March 29, 1996, for violating the condition which prohibited contact with children. On April 27, 1995, Casterline admitted that he had contact with a teenage boy in the hallway of the county courthouse. On March 29, 1996, Casterline admitted that he had verbal contact with two boys aged ten and fourteen when he inquired if they had seen his lost cat.

The court's imposition of the new condition of probation in 1991 is clearly an enhancement of the conditions imposed in 1984. The original conditions of probation are standard and did not include any provision relating to children or which arguably could be modified to include this prohibition. While it is true that the trial court has the right to rescind or modify terms and conditions of probation at any time pursuant to section 948.01(5), Florida Statutes (1991), "[a]bsent proof of a violation, the court cannot change an order of probation by enhancing the terms." Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994); Clark v. State, 579 So.2d 109, 110 (Fla.1991); Martin v. State, 691 So.2d 1204 (Fla. 4th DCA 1997).

Probation is a sentence in Florida and the double jeopardy provision includes protection against enhancements or extensions of conditions of probation. Lippman, 633 So.2d at 1064. Even when a non-violating probationer agrees to the enhancement of the terms of probation, he is not estopped from raising the double jeopardy infringement. See Clark, 579 So.2d at 110; Waldon v. State, 670 So.2d 1155, 1159-60 (Fla. 4th DCA 1996).

Casterline did not appeal the 1991 order which enhanced the conditions of his probation, nor did he appeal the 1995 and 1996 orders which revoked the probation. However, Casterline is not precluded from raising the issue at this time. In Lippman the supreme court held that the challenge to the improper enhancement of the terms of probation can be raised in a motion for postconviction relief. Id., 633 So.2d at 1064-65. The prohibition against double jeopardy which is involved in these instances has not been waived by the failure to raise this issue on appeal of the original imposition of the condition or by failure to appeal the subsequent revocation of probation. Id.

In the present case, as in Delancey v. State, 653 So.2d 1062 (Fla. 4th DCA 1995), the court found no violation of probation in 1991, yet proceeded to enhance the defendant's probation. "This violated the double jeopardy prohibition against multiple punishments for the same offense. Thus, the order modifying probation must be vacated." Id., 633 So.2d at 1064. As Casterline had not violated his probation in 1991, the court improperly enhanced the conditions of probation and the subsequent violations of the enhanced condition in 1995 and 1996 were a nullity.

Accordingly, the order denying the motion for postconviction relief is reversed. The Corrected Order Modifying Probation dated August 8, 1991, is hereby vacated. Additionally, the orders revoking probation dated April 27, 1995, and March 29, 1996, and the judgment and sentence entered March 29, 1996, also are vacated. This matter is remanded to the trial court for further proceedings in accordance with this opinion.

Reversed and remanded with instructions.

PATTERSON and LAZZARA, JJ., concur.

SCHOONOVER, A.C.J., dissents with opinion.

SCHOONOVER, Acting Chief Judge, dissenting.

I would hold that double jeopardy protection can be waived and was waived in this case. I would also find that the appellant's probation was properly revoked because he violated a condition of probation validly imposed upon him in 1995. I must, therefore, dissent.

I. The 1991 Modification of Probationary Conditions

The majority bases its decision upon the 1991 proceeding in which Casterline, assisted by counsel and in open court, agreed to the addition of a condition of his supervision in exchange for his release from jail on his own recognizance to await trial on a felony charge of aggravated assault. I question whether the supreme court in Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994), and Clark v. State, 579 So.2d 109, 110 (Fla.1991), intended to foreclose such a bargain which benefits both parties; I do not agree that such an accord cannot be enforced against the party who has already enjoyed the benefit of the bargain.

In Lippman after the trial court concluded that the defendant had not violated his probation, the court added without the probationer's consent a condition similar to the one under consideration here. This modification, the supreme court concluded, violated the prohibition against double jeopardy, and the order modifying probation was vacated.

In Clark the supreme court disapproved a practice whereby the probation officer procured the probationer's written consent to modify the terms of supervision, the written reduction of which was forwarded to the court for the entry of an order approving same. The supreme court recognized the potential abuse of procedural due process inherent in such an arrangement and based its assessment of trial court error on the absence of notice and hearing to the probationer. The supreme court found support in its decision from section 948.06, Florida Statutes (1987), which provides the statutory authority for modifying conditions of supervision following a finding by the trial court of a violation.

In 1991 Casterline faced continued incarceration on a pending felony and through counsel negotiated for his release in exchange for the imposition of a new condition to his supervision. He acknowledges receiving the benefit of this arrangement and now is heard to complain of its illegality. I subscribe to Judge Stone's thoughtful dissent in Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996), in which the probationer agreed to a new term of supervision in exchange for the withdrawal of a warrant alleging a violation of probation. He concludes:

Having negotiated for, and accepted the benefit of, the state's withdrawing the affidavit, Appellant should not now be heard to disavow her agreement ... I also note that to hold otherwise deprives a probationer facing certain revocation and incarceration of the opportunity to negotiate a reasonable modification acceptable to the court.

Waldon, 670 So.2d at 1161.

Casterline, while not negotiating for the withdrawal of an affidavit and warrant, secured his release from confinement by simply agreeing to avoid the company of unaccompanied minors. The majority would deprive the trial court of the discretion to approve any agreement between the State and the probationer which "enhances" the terms of supervision, even when such terms serve the interests of the probationer, the State, and the public at large. I do not believe that the prohibition against double jeopardy restrains a trial court's authority to endorse a negotiated agreement voluntarily entered into between parties to a criminal proceeding.

The Florida Supreme Court has determined that double jeopardy claims may be waived as part of a negotiated plea arrangement. See Novaton v. State, 634 So.2d 607 (Fla.1994) (concluding that a defendant who settles upon a plea...