Ewell v. State, 5D02-3067.

• Decision Date: 22 August 2003
• Docket Number: No. 5D02-3067.,5D02-3067.
• Citation: 852 So.2d 436
• Parties: Joan EWELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 436

Joan EWELL, Appellant, v. STATE of Florida, Appellee.

No. 5D02-3067.

District Court of Appeal of Florida, Fifth District.

August 22, 2003.

James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

PLEUS, J.

Joan Ewell appeals her judgment and sentence for violation of probation. We reject her argument that the trial court abused its discretion in finding that she had the ability to pay restitution and willfully failed to do so. We do find, however, that the trial court's upward departure sentence is not supported by substantial competent evidence. Accordingly, we affirm the judgment but reverse the sentence and remand for imposition of a guidelines sentence.

Ewell argues that the court erred in upwardly departing from the sentencing guidelines. The state fails to address this argument. It simply states:

The trial court submitted two reasons, via oral and written pronouncements, for his decision to depart from the sentencing guidelines: escalating pattern of criminality; and fraudulent use of medical reports to facilitate continued criminal conduct. (R 85). The trial court, therefore, decided that there were two valid reasons for the departure sentence and that the departure sentence was appropriate in Appellant's case.

Although the state does not concede error, the trial court did. In its untimely Order Correcting Sentence, the judge conceded that the reasons he gave for upwardly departing were improper and that there was no valid basis for departure. He attempted to re-sentence Ewell within the guidelines but this court denied her motion to relinquish jurisdiction.

We agree with Ewell and the trial court. Her prior record did not constitute an escalating pattern of criminal conduct. See Tessier v. State, 730 So.2d 761 (Fla. 5th DCA 1999). Such a pattern is demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. Id. Like the defendant's record in Tessier, Ewell's record displays a pattern of criminal conduct, but not an escalating pattern.

Nor was there evidence to support the court's finding that Ewell fraudulently used medical reports to facilitate criminal conduct. The only evidence presented was Ewell's testimony that she was ill, her probation officer's testimony that she was ill and the medical reports. At the hearing, the judge stated that he chose not to believe Ewell's testimony and that it appeared to him that she was a professional con woman who conned doctors and used that as a license to steal. The judge later conceded this finding was error. Accordingly, Ewell's sentence is reversed for imposition of a guidelines sentence.

The next issue raised on appeal concerns scrivener's errors and the allegedly improper combination of consecutive sentences on multiple counts within a general order. Ewell argues that the judgment is flawed because it reflects the wrong attorney representing her and it reflects that she pled guilty to the violations when, in fact, she contested the violation but was found guilty after a hearing. The state correctly asserts that these errors do not affect the sentence and do not require reversal. However, because the sentence was illegal and requires reversal anyway, the judgment should be corrected on remand. See Bell v. State, 798 So.2d 796 (Fla. 4th DCA 2001); Hill v. State, 796 So.2d 564 (Fla. 3d DCA 2001).

Ewell also argues that combining multiple sentences for multiple counts on a single page of a general sentencing order is improper. This argument lacks merit. General sentences are those which impose a single sentence for multiple counts. For example, imposing a sentence of ten years incarceration for two counts is a general sentence. General sentences are prohibited. Parks v. State, 765 So.2d 35 (Fla. 2000). However, the lower court, both orally and in writing, sentenced Ewell to two consecutive terms of five years in prison on counts one and two, for a total of ten years. This sentence was not a general sentence. We affirm the judgment but reverse the sentence and remand for imposition of a guidelines sentence.

JUDGMENT AFFIRMED; SENTENCE REVERSED, REMANDED.

PETERSON, J., concurs.

SHARP, W., J., concurs in part and dissents in part, with opinion.

SHARP, W. J., concurring in part; dissenting in part.

I agree with the majority opinion that the record does not support the trial court's upward departure sentence based on its finding of an escalating pattern of criminal activity. The judge stated that Ewell had committed fraudulent use of medical reports to facilitate criminal activity. This finding was completely unsupported by the evidence and could only have been premised on the judge's disbelief of Ewell's medical testimony.¹

However, I respectfully disagree with the majority opinion that Ewell had the ability to pay her restitution. The record does not support that finding either and, in all fairness, Ewell's revocation of probation for failure to pay restitution should be reversed.

In 1998, Ewell was convicted and sentenced for numerous felonies² in six different Central Florida counties. She was ordered to pay restitution and to perform community service, which was supervised by Citrus County.

In 2000, Ewell's former probation officer, Linda Tew (Tew) filed a technical violation of probation with Judge Blackstone. Tew stated in her report that Ewell had paid a total of $1,471 in restitution; the majority of which was paid to other counties, not Citrus. Tew also said that Ewell's income was $946.00 per month, which came from a part time job and her social security disability:

[W]hich has made the subject unable to complete more community hours and pay a larger portion of her restitution. Additionally, the subject has been diagnosed with breast cancer approximately three (3) months ago and has been going under [sic] chemotherapy. She is scheduled to go under [sic] radical mastectomy in the next week, but continues to do the best she can. In spite of her weakened condition the subject still has maintained her part time job .... (emphasis added)

Tew recommended that no action be taken against Ewell and none is reflected in this record.

In 2002, Ewell was brought before Judge Howard on violation of probation charges that she had failed to pay the restitution ordered and had failed to perform community service. At the 2002 hearing, Ewell testified that she is under medical supervision for breast cancer and a heart condition (tachycardia). She also has sugar diabetes and, as a result of a nervous breakdown in 1990, continues to take medication to stabilize her for depression. She has had a mastectomy and chemotherapy and her medical oncologist told her not to work. He instructed her to get a lot of rest, watch her diet carefully, and strictly take tamoxifen twice a day.

Ewell testified she has been receiving social security disability ($479.00 per month) since 1995 because she cannot handle stress and could not keep a job. For a while she had been driving a cab part-time. Ewell also receives alimony ($100.00 per month) and child support ($446.00 per month) for her seventeen-year-old daughter. As Judge Howard noted, Ewell's total monthly income was $1,025.00, and her mortgage payment was $441.00 per month.

Ewell's probation officer, Delaine Rollenhagen (Rollenhagen) testified that Ewell had been placed on probation on August 12, 1998. She was required to pay restitution to two Citrus County victims: Helen D'Angelo in the sum of $100.00; and the Greenwood Trust Co. in the sum of $6,607.56. Rollenhagen said that Ewell still owed D'Angelo $1.12 and Greenwood Trust $6,536.37.

Rollenhagen said Ewell had completed no community service hours because she has multiple medical problems for which Ewell had provided medical documentation. Rollenhagen testified that there was no community service Ewell could perform in Citrus County because the approved community service work place list indicated no office positions. Most employers were looking for manual labor, which Ewell is unable to perform. Rollenhagen said the approved work sites do not need anyone with the type of volunteer skills Ewell can perform. Rollenhagen concluded that she believed Ewell had tried to comply with the community service work hours, but that her medications³ prevent her from doing so.

Rollenhagen said Ewell was good about keeping in touch with her and making all her appointments. She also made a $50.00 monthly payment each month, although that...