Kaiser v. State
| Decision Date | 11 August 2021 |
| Docket Number | No. 4D20-2265,4D20-2265 |
| Citation | 322 So.3d 696 (Mem) |
| Parties | Steven Kenneth KAISER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and L.K.S. Fagan, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.
Steven Kaiser appeals a final judgment revoking his probation. He argues the circuit court committed reversible error by sentencing him to a term of imprisonment, rather than modifying or continuing his probation in accordance with section 948.06(2)(f)1.c., Florida Statutes (2019). We affirm.
A violation of probation affidavit was filed alleging Kaiser violated two conditions of his probation. The first violation alleged that Kaiser failed "to live and remain at liberty without violating any law." The second alleged that Kaiser "us[ed] intoxicants to excess or possessing any drugs or narcotics, unless prescribed by a physician."
The probation officer's violation report states that when she was packaging Kaiser's urine sample, Kaiser admitted to using methamphetamine. And in his "Positive Drug Usage Statement," Kaiser wrote in the comments that he "smoked a pipe or tube and regret[ed] it."
Kaiser subsequently pled guilty to the two probation violations. When he did so, he pled guilty to violating the law. He also pled guilty to "possession of a drug or narcotic not prescribed by a physician, to-wit: Methamphetamine." He does not challenge his plea. Only the ramifications.
Kaiser argues the court was required to modify or continue his probation instead of revoking it because, he argues, he satisfied all four conditions of section 948.06(2)(f)1., Florida Statutes (2019).1 He argues his probation was revoked for what the statute defines as a low-risk violation. Specifically, a "positive drug or alcohol test result." § 948.06(9)(b)1., Fla. Stat. (2019).
But Kaiser's probation was not revoked for a "positive drug or alcohol test result ." Id . (emphasis added). While a test result led to the filing of the violation of probation affidavit, it is the guilty plea to the two violations, including that he possessed and smoked methamphetamine, that makes section 948.06(2)(f)1. unavailable to him.
Affirmed .
To reach its conclusion, the majority has ignored the plain language of a statute and violated basic rules of statutory construction. As a result, the legislative intent—to conserve tax dollars by requiring non-incarcerative sentencing options—has been frustrated.
The proper result in this case is to reverse, holding that the trial court erred in sentencing appellant to prison, rather than modifying or continuing his probation as required by section 948.06(2)(f), Florida Statutes (2019).
Originally, Steven Kaiser was charged with one count of giving false information to a pawnbroker and one count of dealing in stolen property. In 2017, he entered a no contest plea to both charges for the negotiated sentence of three years in the Department of Corrections followed by two years of probation on each count, to be served concurrently. The trial court adjudicated Kaiser guilty of both charges, and sentenced him in accordance with the negotiated plea. Two of the conditions of probation were that he "live without violating any law" and "not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician."
After serving his prison time, Kaiser began the probationary portion of his sentence. In December 2019, his probation officer filed a violation of probation report (the "Report"). In the Report, the probation officer alleged that Kaiser violated two conditions of probation: "Condition (5) of the Order of Probation, by failing to live and remain at liberty without violating any law" and "Condition (7) of the Order of Probation, by using intoxicants to excess or possessing any drugs or narcotics, unless prescribed by a physician."
As factual support for the charges, the probation officer stated that (1) Kaiser's December 2019 drug screen of his urine tested positive for amphetamines and methamphetamines, and (2) Kaiser signed a statement admitting to smoking "[a]mphetamines/[m]ethamphetamines on or about 12/03/2019."
In the recommendation portion of the Report, the probation officer recommended that the trial court sentence Kaiser to one year of community control. The officer described the violation as a "technical violation," and stated that she "would like to give the offender one more chance to be successful on community supervision with the strictest form of community supervision."
In October 2020, Kaiser admitted to the violation of probation as part of an open plea.
After the trial court accepted Kaiser's plea, his attorney argued that he "qualifies for a mandatory modification of probation under 948.06(2)."
The trial court found that the allegations of the Report supported a new law violation, and commented that he and other judges do not like when their discretion is taken away by mandatory sentencing statutes. The State urged the court to sentence Kaiser to 12 years in prison; the judge imposed a sentence of 60 months in prison.
Kaiser argues that the trial court erred in refusing to sentence him pursuant to the mandatory provision contained in section 948.06(2)(f), Florida Statutes (2019).
Section 948.06(2)(f) states:
§ 948.06(2)(f), Fla. Stat. (2019). The statute became effective on October 1, 2019. See Bradley v. State , 303 So. 3d 1018, 1018 (Fla. 1st DCA 2020).
To define a "low-risk technical violation," section 948.06(2)(f) 1.c. adopts the definition of "low-risk violation" in subsection 948.06(9)(b), Florida Statutes (2019), which states in pertinent part:
§ 948.06(9)(b) 1., Fla. Stat. (2019).2
Case law has massaged the language of section 948.06(2)(f).
First, the statute uses the phrase "when any of the following applies" before the list of four conditions in subsections a. through d. Id. (emphasis added). This suggests that the statute's mandatory sentencing provisions would apply when any one of the a. through d. subsections applied.
However, applying the absurdity doctrine, the First District has held that a probationer must meet all four requirements to qualify for sentencing under section 948.06(2)(f), reasoning that "it seems clear that the Legislature intended section 948.06(2)(f) 1 [.] [to] apply only to persons who meet all four conditions." Owens v. State , 303 So. 3d 993, 998 (Fla. 1st DCA 2020). The Fifth District came to the same conclusion in Kirk v. State , 303 So. 3d 604, 606 (Fla. 5th DCA 2020). The courts found that if "any" did not mean "all" in section 948.06(2)(f), then the conditions listed in subsection b. through d. would be superfluous, since the condition in subsection a. is that the probationer is on probation, and "anyone found to have violated probation must, of course, be on probation." Owens , 303 So. 3d at 997 ; Kirk , 303 So. 3d at 606.3
Additionally, the First District has held "that the plain language of 948.06(2)(f)1.c. is clear and unambiguous and applies only to probationers with a single violation of probation." Schmidt v. State , 310 So. 3d 135, 137 (Fla. 1st DCA 2020) (emphasis added). The court in Schmidt found that, because the legislature used the language, "[t]he violation is a low-risk technical violation, as defined in paragraph (9)(b)" in section 948.06(2)(f) 1.c., the legislature unambiguously intended the statute to apply only when there is a single low-risk violation. Id. at 136–37.
Kaiser does not challenge either of these interpretations of the statute; he accepts that he must meet all four requirements of section 948.06(2)(f) 1., and that there can be only one low-risk violation. On the other hand, the State does not dispute that Kaiser met three of the four requirements.
The central issue on appeal is whether Kaiser met the requirement of subsection 948.06(2)(f)1.c.: "The violation is a low-risk technical violation, as defined in paragraph (9)(b)." § 948.06(2)(f) 1.c., Fla. Stat. (2019).
The statute defines a low-risk technical violation as "[a] positive drug ... test result." § 948.06(9)(b) 1., Fla. Stat. (2019). Here, the violation that triggered the violation of probation proceeding was a positive drug test. Almost every positive drug test arises from the possession of an illegal drug. To split a positive drug test into two violations—the failed drug test and illegal possession of a controlled substance—would always preclude a positive drug test from qualifying for the mandatory sentencing provision of section 948.06(2)(f) 1.
This result is contrary to the plain language of the statute and the legislative intent to show leniency to certain probationers for a first violation of probation. We must defer to the legislative intent as expressed in the statute's plain language. Kaiser...
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