Christian v. State

• Decision Date: 05 April 2012
• Docket Number: No. 5D11–4495.,5D11–4495.
• Citation: 84 So.3d 437
• Parties: Bobby Lee CHRISTIAN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

84 So.3d 437

Bobby Lee CHRISTIAN, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 5D11–4495.

District Court of Appeal of Florida, Fifth District.

April 5, 2012.

84 So.3d 438

Bobby L. Christian, Raiford, pro se.

84 So.3d 439

Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Bobby Lee Christian, Jr., appeals from the denial of his rule 3.800(a) motion to correct illegal sentence. Christian was originally sentenced pursuant to the Florida Youthful Offender Act, sections 958.022–.15, Florida Statutes (2004) ("Youthful Offender Act"), to concurrent split sentences on charges of aggravated assault against a law enforcement officer (with a firearm) and aggravated battery with a deadly weapon. After serving the prison portion of these sentences, and while on youthful offender probation, Christian violated his probation by using marijuana. Although Christian was not charged with a new crime related to his illicit drug use, he did admit to using marijuana. Upon accepting Christian's admission to this violation of probation, the trial court revoked his probation and sentenced him to concurrent terms of ten years in state prison on the charges. Christian argues that these sentences violate a provision in the Youthful Offender Act which provides that: "[N]o youthful offender shall be committed ... for a substantive violation [of probation] for a period longer than the maximum sentence for the offense for which he or she was found guilty, ... or for a technical or nonsubstantive violation for a period longer than 6 years." § 958.14, Fla. Stat. (2004). Christian argues that his violation cannot be classified as substantive because the State did not charge and convict him of any new crime related to his illicit drug use. As such, he argues that this violation must be classified as technical or nonsubstantive, and that he could only be sentenced to six years in prison. We reject this argument based upon our precedent in Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997) (holding that illicit drug use, because it is also a crime, constitutes a substantive violation of youthful offender probation).¹ In Robinson, as in this case, the state did not file new charges based upon the illicit drug use.

We have repeatedly and consistently followed Robinson. See, e.g., Drost v. State, 995 So.2d 1142 (Fla. 5th DCA 2008) ; Schneider v. State, 929 So.2d 1121 (Fla. 5th DCA 2006) ; Stevenson v. State, 869 So.2d 644 (Fla. 5th DCA 2004) ; Washington v. State, 840 So.2d 442 (Fla. 5th DCA 2003) ; Hardy v. State, 706 So.2d 42 (Fla. 5th DCA 1998). And, Robinson has been cited with approval by the Florida Supreme Court, see State v. Meeks, 789 So.2d 982, 985–86 (Fla.2001), and by all but one of Florida's other district courts of appeal. See, e.g., Meeks v. State, 754 So.2d 101 (Fla. 1st DCA 2000), approved, 789 So.2d 982 (Fla.2001) ; Swilley v. State, 781 So.2d 458, 460–61 (Fla. 2d DCA 2001) ; Thompson v. State, 945 So.2d 627, 628 (Fla. 4th DCA 2006). Although not citing to Robinson, the Third District has also repeatedly held that new criminal conduct constitutes a substantive violation of youthful offender probation, irrespective of whether the conduct results in new charges or convictions. See, e.g., Flores v. State, 46 So.3d 102 (Fla. 3d DCA 2010), rev. granted,

84 So.3d 440

58 So.3d 260 (Fla.2011) ; Morency v. State, 955 So.2d 67, 68 n. 1 (Fla. 3d DCA 2007).

On appeal, however, Christian argues that our holding in Robinson should be viewed as conflicting with Rogers v. State, 972 So.2d 1017 (Fla. 4th DCA 2008), which contains language suggesting that a new crime may only be classified as a substantive violation of youthful offender probation where the defendant is "charged by information with the new, substantive offense," id. at 1019, and independently convicted of the new charge(s). Id. at 1020. If this was the intended holding of Rogers, then we agree that Rogers would be in conflict with Robinson, as well as most of the cases cited above following Robinson, including other cases from the Fourth District, see, e.g., Thompson, 945 So.2d at 628, and the Third District's recent Flores decision.

More importantly, no such holding could be squared with the plain language of section 958.14, Florida Statutes. That statute limits sentencing for technical violations of youthful offender probation to six years, but cannot reasonably be read as adding new evidentiary requirements or procedural hurdles that the state must meet to prove either a technical or substantive violation of probation for youthful offender cases. Cf. Hayes v. State, 750 So.2d 1, 4 (Fla.1999) ("[Courts] are not at liberty to add words to statutes that were not placed there by the Legislature."). Florida's courts have long held that criminal conduct may be established in a violation of probation hearing (as a basis for revoking probation) by a preponderance of the evidence, even where the defendant is acquitted of new charges based upon the same conduct. See, e.g., Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975). We have never imposed a requirement that the state independently prosecute new criminal charges in order to allege the conduct as a violation of probation. See, e.g., State v. Tuthill, 545 So.2d 850, 851 (Fla.1989) ; Swilley, 781 So.2d at 460. Clearly, if the legislature had intended to add additional procedural or proof requirements to the state's burden of establishing probationary violations for youthful offenders, whether technical or substantive, "it could easily have said so." Fla. Wildlife Fed'n v. State, Dep't of Envtl. Regulation, 390 So.2d 64, 67 (Fla.1980) (courts "presume legislative awareness of the law"). We also point out that in the fifteen years since we decided Robinson, the legislature has repeatedly amended the Youthful Offender Act² without adding any language to impose the requirements which Christian advocates for based upon his reading of Rogers. See Goldenberg v. Sawczak, 791 So.2d 1078, 1081 (Fla.2001) ( "Long-term legislative inaction after a court construes a statute amounts to legislative acceptance or approval of that judicial construction.").

In addition, we note that the Third District in Flores addressed Rogers in some detail, explaining why Rogers should not be read as requiring conviction on new offense(s) in order to establish a substantive violation of youthful offender probation (and thereby bypass the six-year cap for youthful offender sentences). We agree with the Third District's reading of Rogers, and see no conflict among the districts on this issue. However, it appears that the Florida Supreme Court has accepted review of Flores, pursuant to its conflict jurisdiction, based upon an argument that Flores conflicts with Rogers. If Flores does conflict with Rogers on this

84 So.3d 441

issue, then our precedent also conflicts with Rogers. Seeing no reason to revisit our longstanding precedent, which in our view accurately interprets section 958.14, we elect to certify conflict with Rogers (even though we see no conflict) in light of our Supreme Court's current review of Flores.

Because we believe that a more thorough discussion of the four issues addressed by Florida's courts relating to the Youthful Offender Act may help clear up the confusion that underpins Christian's argument in this case, we will now address those issues. Those issues are: (1) the sentencing features (including limitations) applicable to youthful offender sentences; (2) how a trial court's decision to sentence a defendant on an offense pursuant to the Youthful Offender Act affects future sentencing proceedings relating to that offense; (3) youthful offender classification within the Department of Corrections; and (4) whether a trial court's decision to sentence a defendant pursuant to the Youthful Offender Act affects sentencing for new offenses committed while the defendant is serving his or her youthful offender sentence. In discussing these issues, we will occasionally use the phrase "youthful offender status." Although that phrase is not found in the Youthful Offender Act, its use in differing contexts (to mean different things) may have helped create the confusion that we will now attempt to clear up.

Issue 1: Features and Limitations of a Youthful Offender Sentence.

With passage of the Youthful Offender Act in 1978, see Chapter 78–84, Laws of Florida, the legislature created an alternative sentencing scheme available to judges when sentencing a criminal defendant younger than 21 years of age at the time of sentencing. § 958.04(1), Fla. Stat. (2011).³ Youthful offender sentencing is not available for defendants guilty of a capital or life felony, see section 958.04(1)(c), Florida Statutes (2011), or for defendants who have been sentenced pursuant to the Youthful Offender Act for a prior offense. Id.

The youthful offender sentencing feature most often addressed by the courts is the six-year sentencing limit applicable, under the current version of the statute, to the original sentence on an offense and to any sentence imposed following a technical or non-substantive violation of probation. See § 958.14, Fla...