Lacey v. State

• Decision Date: 24 February 2021
• Docket Number: No. 4D20-0202,4D20-0202
• Citation: 312 So.3d 97
• Parties: Chanteria Nicole LACEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

312 So.3d 97

Chanteria Nicole LACEY, Appellant,

v.STATE of Florida, Appellee.

No. 4D20-0202

District Court of Appeal of Florida, Fourth District.

[February 24, 2021]

Carey Haughwout, Public Defender, and Claire Madill, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessica L. Underwood, Assistant Attorney General, West Palm Beach, for appellee.

Per Curiam.

The defendant appeals from a final judgment revoking her probation and sentencing her to twenty-eight months of imprisonment. She argues on appeal that the circuit court impermissibly considered her failure to pay restitution in determining whether to revoke her probation and the length of her term of incarceration. We agree and reverse.

In 2015, the defendant pled no contest to two second degree felonies. Pursuant to her negotiated plea agreement, the circuit court adjudicated her guilty on both counts and sentenced her to two concurrent five-year terms of probation. As a special condition of probation, the court ordered that the defendant pay restitution to the victim in the amount of $1,500.00. The order of probation also directed the defendant to pay court costs in the amount of $1,118.00. Neither the probation order nor the court's oral pronouncement of sentence specified that either of these amounts were to be paid by a date certain, nor was the defendant directed to make specified monthly payments toward these amounts.

Approximately three years into the defendant's probation, the State charged her with violating three of the standard probation conditions by: (a) failing to report to her probation officer as directed on a date certain; (b) failing to pay the court-ordered $40.00 per month, plus 4% surcharge, toward her supervision cost; and (c) changing her residence without first procuring her probation officer's consent.

Although the violation report prepared by the defendant's probation officer stated the defendant was delinquent in paying restitution and court costs, the State did not charge the defendant with violating those probation conditions.

Over a year later, the defendant was arrested on the charged violations. She entered an open plea of admission to the charged violations and again agreed she would pay restitution "as ordered."

During the brief sentencing hearing, the defendant asked for reinstatement of her probation as she strived for reunification with her seven children.

The State recommended revocation of the defendant's probation and imprisonment for a period of twenty-four months. The State argued the defendant was not "a good candidate for probation" because "she absconded for basically a year."

After hearing from defense counsel, the sentencing judge commented:

All right. So she's on felony supervision for two not one—but two second-degree felonies punishable by up to thirty years in prison. She violates by not reporting, absconding from supervision.

But what is problematic to me is that having been on probation since October 15th up until she absconded is—let's say in June 2018 or so—so she owed restitution in the amount of $1500. Her current balance is $1500; court costs $1,118; current balance $1,118; costs of supervision $2400. Now it's [$]2440. She hasn't paid one cent towards restitution. Not a single penny .

I'm going to revoke and terminate her probation unsuccessfully. She's previously adjudicated guilty. I'm going to sentence her to 28 months in the Department of Corrections with credit for time served.

(emphasis added).

Although the sentencing judge's oral pronouncement emphasized the defendant's failure to pay restitution, the judge's written order revoking the defendant's probation referred only to the charged violations to which the defendant had pled.

The revocation of a criminal defendant's probation involves a two-step process by which the sentencing court first determines whether the defendant willfully and substantially violated her probation, and then whether probation should be revoked based on the violation. Milanes v. State , 296 So. 3d 933, 937 (Fla. 4th DCA 2020) ; Harrington v. State , 238 So. 3d 294, 298-99 (Fla. 4th DCA 2018). Because the defendant admitted through her plea that she violated her probation in the manner alleged in the affidavit of violation of probation, this appeal would normally require us to review only whether the sentencing court abused its discretion in revoking probation based on the admitted violations. However, the issue raised by the defendant and upon which we reverse presents a question of law subject to a de novo standard of review. See Baehren v. State , 234 So. 3d 799, 801 (Fla. 4th DCA 2018) ("Whether a trial court violates a defendant's due process rights by considering impermissible factors in sentencing is a question of law subject to de novo review.").

The State argues that the circuit court's consideration of the defendant's failure to pay restitution and court costs in determining whether to revoke her probation based on the admitted violations was appropriate pursuant to the statutorily delineated principles of the Criminal Punishment Code (CPC). See generally § 921.002(1)(b), (c), Fla. Stat. (2015). The State asserts that the court's consideration of these factors at sentencing were consistent with "[t]he primary purpose of sentencing" being "to punish the offender" with a penalty that "is commensurate with the severity of the primary offense and circumstances surrounding the primary offense." Id.

The State points to the violation report forming the basis for the charged violations in this case, which included the defendant's failure to make any payments towards her restitution and court costs, as providing the foundation for the circuit court's consideration of these factors surrounding the defendant's admitted probation violations. The State asserts that the court appropriately considered the defendant's failure to make any payments towards her restitution and court costs, along with her other admitted violations, in determining that she was not likely to be successful if reinstated to probation.

The State's argument, however, ignores that the defendant was not, at the time of sentencing on the admitted violations, delinquent in her obligations to pay restitution and court costs. Because the order placing her on probation did not state that either her restitution or court costs were to be paid in monthly installments or by a date certain, the defendant had until the end of her probationary terms to pay both of these monetary obligations. See Herrera v. State , 286 So. 3d 867, 872 (Fla. 2d DCA 2019) (determining that when a probationer had entire term of supervision to pay court costs, he "should not be found in violation of a condition of probation where that violation had not yet occurred"); see also Willis v. State , 727 So. 2d 952, 953 (Fla. 4th DCA 1998) (determining defendant had entire community control term to pay costs "because there was no time schedule for payment of the costs"); Llumbet v. State , 698 So. 2d 381, 383 (Fla. 4th DCA 1997) (determining defendant had entire community control term to pay restitution where supervision order did not "specify either a payment schedule or a time limit for payment"); Antoine v. State , 684 So. 2d 266, 267 (Fla. 4th DCA 1996) (determining defendant had entire community control term to pay court costs where neither written supervision order nor oral pronouncement of sentence specified "either a payment schedule or a time limit for paying costs").

Thus, we are persuaded the defendant has shown from the record that her sentence may have been influenced, in substantial part, by consideration of her failure to pay restitution to the victims, even though no schedule required her to pay restitution before her probation ended.

Because the court considered impermissible factors in sentencing, which is a violation of due process, we reverse and remand for resentencing before a different judge. This relief is consistent with precedent.¹ See Baehren v. State , 234 So. 3d 799 (Fla. 4th DCA 2018) ; Guerra v. State , 212 So. 3d 541 (Fla. 4th DCA 2017) ; Seays v. State , 789 So. 2d 1209 (Fla. 4th DCA 2001) ; Yisrael v. State , 65 So. 3d 1177 (Fla. 1st DCA 2011) ; Mirutil v. State , 30 So. 3d 588 (Fla. 3d DCA 2010) ; Gray v. State , 964 So. 2d 884 (Fla. 2d DCA 2007) ; Berry v. State , 458 So. 2d 1155 (Fla. 1st DCA 1984).²

The reason for resentencing before a different judge in such cases is succinctly stated in Schwartzberg v. State , 215 So. 3d 611, 616 (Fla. 4th DCA 2017), in which the State conceded error where the trial court impermissibly considered subsequent uncharged conduct in sentencing:

We therefore reverse and remand for resentencing before a different judge "to preclude any perception on [appellant's] part that the resentencing may not be conducted in a completely fair and impartial manner." Mirutil v. State , 30 So. 3d 588, 591 (Fla. 3d DCA 2010) (quoting Berry v. State , 458 So. 2d 1155, 1156 (Fla. 1st DCA 1984) ).

Reversed and remanded for resentencing before a different judge.

Levine, C.J., and Warner, J., concur.

Artau, J., concurs in part and dissents in part with an opinion.

While I concur with reversing the sentence imposed upon defendant because of the error in considering the defendant's failure to pay restitution that was not yet due, I dissent in the majority's remand for the defendant to be resentenced before a different judge.

We have held "a revocation of probation on both proper and improper grounds" will be affirmed "when it is clear from the record that the trial court would have revoked the defendant's probation absent the improper grounds." Crapps v. State , 155 So. 3d 1242, 1247 (Fla. 4th DCA 2015) (citing McDoughall v. State , 133 So. 3d 1097, 1100 (Fla. 4th DCA 2014) ). Conversely, "[w]hen we cannot determine whether the trial court would have revoked the defendant's probation based solely on the proper grounds, we must reverse and remand the matter...