Goldwire v. State

• Decision Date: 02 November 2011
• Docket Number: No. 4D09–4363.,4D09–4363.
• Citation: 73 So.3d 844
• Parties: Treymone GOLDWIRE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

73 So.3d 844

Treymone GOLDWIRE, Appellant,

v.STATE of Florida, Appellee.

No. 4D09–4363.

District Court of Appeal of Florida, Fourth District.

Nov. 2, 2011.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant, Treymone Goldwire, appeals the trial court's judgment of conviction and sentence of twenty years in the Department of Corrections, pursuant to the Criminal Punishment Code. Goldwire argues there was a sentencing error because the trial court was unaware it could exercise its discretion in imposing Goldwire's sentence. We remand this case so the court may now exercise its discretion and properly consider all sentencing options.

Goldwire was charged by information with three counts of armed robbery with actual possession of a firearm ¹ and one count of grand theft of a motor vehicle.² Goldwire entered a plea of guilty to all four counts. Goldwire was adjudicated guilty on the first two counts of robbery with a firearm and received a sentence of two years in the Department of Corrections as a youthful offender, to be served concurrently with 389 days as credit for time served. For the other two counts, Goldwire was sentenced to four years probation as a youthful offender, consecutive with the two years of incarceration. Under condition (k)(4) of the orders of supervision for probation, Goldwire was required not to “violate any law of any city, county, state or the United States.” Goldwire was subsequently charged by affidavit with violation of probation (“VOP”) for violating condition (k)(4) by commission of a criminal offense of possession of weapon or ammunition by a felon.

After Goldwire was charged, a final hearing was held to simultaneously consider a motion to suppress and VOP. The court believed that because Goldwire's youthful offender VOP was based on substantive charges, it no longer had discretion for sentence imposition and was required to use the Criminal Punishment Code guidelines for sentencing. The trial court found that Goldwire was on probation, was a convicted felon, and violated his probation. The court revoked Goldwire's probation and sentenced him to twenty years imprisonment for robbery with a firearm with a ten-year minimum mandatory sentence. Goldwire was also sentenced to five years on the grand theft count, to be served concurrently with the twenty-year sentence. Goldwire filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), contending that the court erred in sentencing him under the mistaken belief that it was required to impose adult sanctions. The trial court did not file a timely order in response to the motion, thus it is considered denied under Florida Rule of Criminal Procedure 3.800(b)(2)(B). Goldwire appealed the denial of his motion.

“[A] motion to correct a sentencing error involves a pure issue of law,” so the proper standard of review is de novo. Kittles v. State, 31 So.3d 283, 284 (Fla. 4th DCA 2010). Chapter 958 of the Florida Statutes governs youthful offenders. Specifically, section 958.14 discusses a youthful offender's violation of probation.

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2010). Section 948.06 states, in regards to violations of probation, that “the court may revoke, modify, or continue the probation or community control or place the probationer into community control.” § 948.06(2)(e), Fla. Stat. (2010) (emphasis added).

This court has stated that if a “violation was substantive, the court could impose a sentence up to the maximum for the offenses.” Bryant v. State, 876 So.2d 623, 623 (Fla. 4th DCA 2004) (emphasis added). Additionally, the First District Court of Appeal stated that “a trial court may impose a non-youthful offender sentence on a youthful offender who commits violations of probation that involve new substantive offenses ... [and] the trial court [is] not limited to a youthful offender sentence.” Willis v. State, 744 So.2d 1265, 1266 (Fla. 1st DCA 1999) (citing Hill v. State, 692 So.2d 277, 278 (Fla. 5th DCA 1997) (stating that a trial court is permitted to exceed youthful offender maximum sentences); Johnson v. State, 678 So.2d 934, 934–35 (Fla. 3d DCA 1996) (providing that a youthful offender may be sentenced as a non-youthful offender for commission of a substantive violation while on probation); Dunbar v. State, 664 So.2d 1093, 1094 (Fla. 2d DCA 1995)). Accordingly, it is within the trial court's discretion to determine whether a youthful offender should be sentenced as such, or if it should impose a non-youthful offender sentence when a substantive violation occurs. Therefore, the trial court is not required to impose the minimum mandatory sentence, but instead, is able to do so when exercising its discretion, dependent upon ...