Garcia-Medina v. State

• Decision Date: 18 September 2013
• Docket Number: No. 2D12–665.,2D12–665.
• Parties: Suliany Ivette GARCIA–MEDINA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

135 So.3d 1119

Suliany Ivette GARCIA–MEDINA, Appellant,

v.STATE of Florida, Appellee.

No. 2D12–665.

District Court of Appeal of Florida, Second District.

Sept. 18, 2013.

Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Suliany Ivette Garcia–Medina appeals the revocation of her probation and the resulting adjudication of guilt and prison sentence, contending that her probation expired before the violation affidavit was filed and that therefore the trial court was without jurisdiction to revoke her probation. Because the record bears out this contention, we must vacate the order of modification and the resulting revocation order, adjudication of guilt, and sentence.

On July 23, 2009, Garcia–Medina pleaded guilty to one count of third-degree grand theft. The trial court withheld adjudication and sentenced Garcia–Medina to eighteen months' probation. As imposed, the probationary sentence was set to expire on January 23, 2011.

On November 2, 2010, the trial court entered an order that purported to modify Garcia–Medina's probationary sentence from a term of eighteen months to a term of five years. While this modification order states that it was entered “due to a violation brought before the court,” no affidavit of violation of probation was filed before the modification order was entered, no warrant for arrest or notice to appear was served on Garcia–Medina, and no hearing on the alleged violation was held. Moreover, while the modification order contains a section in which the probation officer is to certify that the order was delivered to the probationer, that section is blank. Hence, nothing in the record establishes that the modification order was ever served on or otherwise provided to Garcia–Medina.¹

On December 14, 2011, the Department of Corrections filed an affidavit of violation of probation alleging that Garcia–Medina had violated her probation by using marijuana and by failing to make the required payments toward her restitution. Garcia–Medina admitted to the alleged violations, and the trial court revoked her probation, adjudicated her guilty, and sentenced her to one year and one day in prison with credit for time served.

Garcia–Medina now appeals the revocation of her probation, the adjudication of guilt, and the resulting sentence, contending that the trial court was without jurisdiction over her when it purported to revoke her probation. She argues that the November 2010 modification order was a nullity because the trial court did not follow the procedures required by section 948.06, Florida Statutes (2010), before it purported to modify her probation; that because the November 2010 modification order is a nullity, her probation ended by its own terms on January 23, 2011; and that because the affidavit of violation of probation at issue here was filed after January 23, 2011, the trial court lacked jurisdiction to revoke her probation. The record supports these arguments, thus mandating that we vacate the challenged orders, judgment, and sentence.

The supreme court addressed a somewhat analogous situation in Lippman v. State, 633 So.2d 1061 (Fla.1994). There, the Department of Corrections filed an affidavit of violation of probation alleging that Lippman violated three conditions of his probation. Id. at 1062–63. The trial court found that the allegations did not relate to valid conditions of Lippman's probation, and it refused to find Lippman in violation. Id. at 1063. At that point, the State made an oral motion to modify Lippman's probation to “clarify” the conditions of his probation. Id. The trial court granted this oral motion and modified certain conditions of Lippman's probation in such a way that Lippman was forced to leave his employment, move from his residence, and have no contact with his siblings. Id. Lippman's modified probation was subsequently revoked after he had contact with his siblings, and he was sentenced to twelve years in prison. Id. In finding that the modification of the conditions of Lippman's probation was unauthorized, the supreme court explained:

Both the United States Constitution and the Florida Constitution guarantee that no individual will be put in jeopardy more than once for the same offense. The guarantee against double jeopardy consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted) (emphasis added).

It is the third protection against multiple punishments for the same offense that is implicated in this case. Probation is a sentence in Florida. Larson v. State, 572 So.2d 1368, 1370 (Fla.1991). Thus, the double jeopardy protection against multiple punishments includes the protection against enhancements or extensions of the conditions of probation. See Williams v. State, 578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy).

Section 948.06, Florida Statutes (1987), “ provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.” Clark v. State, 579 So.2d 109, 110 (Fla.1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110–11;§ 948.06(1), Fla. Stat. (1987). Absent proof of a violation, the court cannot change an order of probation by enhancing the terms. Clark, 579 So.2d at 110–11. In the instant case, the court specifically found no violation of probation, yet proceeded to enhance the terms of Lippman's probation. This violated the double jeopardy prohibition against multiple punishments for the same offense. Thus, the order modifying probation must be vacated. The consequences that resulted from Lippman's violation of that modified probation must be vacated as well, including the order revoking probation, the adjudication of guilt, and the sentence imposed.

Lippman, 633 So.2d at 1064 (emphasis added; footnotes omitted). The Lippman court relied on Clark v. State, 579 So.2d 109, 110–11 (Fla.1991), which held, in pertinent part:

Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06. Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing.

See also Nichols v. State, 672 So.2d 825, 825 (Fla. 2d DCA 1995) (“Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms.”); Eddie v. State, 933 So.2d 570, 571 (Fla. 1st DCA 2006) (“Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993).”); Frederick v. State, 405 So.2d 1344, 1345 (Fla. 3d DCA 1981) (holding that the trial court's sua sponte order that purported to modify the defendant's probation violated double jeopardy and was also an unauthorized extension under section 948.06). This is true even if the trial court has specifically reserved jurisdiction for the purpose of adding a special condition, see Dennis v. State, 630 So.2d 605 (Fla. 1st DCA 1993), or if the defendant “has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing,” Clark, 579 So.2d at 111.

Here, the record plainly shows that the trial court enhanced Garcia–Medina's probationary term from eighteen months to five years, but nothing in the record shows that the trial court complied with the requirements of section 948.06 in doing so....