Lippman v. State

• Decision Date: 17 March 1994
• Docket Number: No. 79574,79574
• Citation: 633 So.2d 1061
• Parties: 19 Fla. L. Weekly S129 Timothy Bryan LIPPMAN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 1061

633 So.2d 1061

19 Fla. L. Weekly S129

Timothy Bryan LIPPMAN, Petitioner, v. STATE of Florida, Respondent.

No. 79574.

Supreme Court of Florida.

March 17, 1994.

Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.

Robert A. Butterworth, Atty. Gen., and Avi J. Litwin, Asst. Atty. Gen., Miami, for respondent.

HARDING, Justice.

We have for review Lippman v. State, 595 So.2d 190, 194 (Fla. 3d DCA 1992), in which the Third District Court of Appeal certified the following questions as being of great public importance:

1. Whether an order modifying probation by prohibiting contact between probationer and victim or victim's minor siblings (for the purpose of protecting the victim and siblings) constitutes an additional punishment proscribed by the double jeopardy clause?

2. Where a probationer is undergoing psychiatric treatment for a sexual offense as a condition of probation, does a probation modification order prohibiting contact between probationer and victim or victim's minor siblings constitute a modification of an existing probation condition or an additional punishment proscribed by the double jeopardy clause?

We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons expressed in this opinion, we answer the first question in the affirmative and determine that the circumstances raised in the second question constitute an additional punishment proscribed by the Double Jeopardy Clause.

Timothy Lippman pled no contest to three counts of attempted capital sexual battery. The minor victim was one of Lippman's siblings. Pursuant to a plea agreement, the trial court sentenced Lippman to two years probation with the following special conditions: 1) that he "undergo psychiatric treatment until such time as the person in charge of such treatment and [his] Probation Supervisor determine that such treatment is no longer necessary"; and 2) as Lippman requested, that he would be permitted to transfer his probation to another state. Lippman began the psychiatric treatment, obtained a job as a security officer, and volunteered his services at the Florida City Police Department. During this time, Lippman lived in his parents' home with the victim and other minor siblings.

Eight months into the probationary term, Lippman's probation officer filed an affidavit of violation. The affidavit stated that Lippman refused to comply with the probation officer's demands to resign from the volunteer job at the police department and to remove police department decals from his car. The affidavit also stated that Lippman had been charged with impersonating a police officer, the unlawful use of radio equipment, loitering, and prowling. ¹

When Lippman appeared in court pursuant to the affidavit, the trial judge noted that Lippman did not appear to be in violation of probation because the alleged violations seemed to arise from Lippman's job as a security officer. Accordingly, the court dismissed the affidavit because there was no evidence that Lippman had violated his probation.

Two days later the probation officer refiled the same affidavit for violation of probation. However, the State withdrew the affidavit when the judge once again stated that Lippman had not violated any of his probationary conditions nor broken any laws. At the judge's suggestion, the State made an oral motion to modify probation in order to clarify the supervisory conditions.

Prior to this hearing, the court received a letter from the therapist who was providing Lippman's court-ordered psychiatric treatment. Neither Lippman nor his attorney had seen this letter prior to the hearing. The therapist expressed concern over Lippman's arrest, his lack of progress in the psychiatric treatment program, and his irregular attendance at the program. The therapist asked the court to modify Lippman's probation by: 1) extending the term from two to seven years; 2) ordering Lippman to pay for and successfully complete the Mentally Disordered Sex Offender program; 3) prohibiting Lippman's participation in any job or activity where he would wear a police-type uniform or use police-type equipment; and 4) restricting Lippman's contact with his immediate family until the entire family entered a program for family members of mentally-disordered sex offenders and all therapists approved contact with the family.

Lippman and his family complained to the judge that the therapist's recommendation would be a great hardship as Lippman would have to move from his parent's residence but would have no income for rent because he would be required to quit his job. Although the trial judge agreed that it would be a great hardship, he entered the order modifying Lippman's probation as requested by the therapist, with the exception of the family contact provision. The judge only restricted Lippman's contact with the minor victim and the other minor siblings, not with his entire family. Lippman did not object to this modification as a violation of double jeopardy, nor did he appeal the enhanced probation order.

Seven months later the court revoked Lippman's probation for having contact with the minor siblings and sentenced him to twelve years in prison. Lippman appealed the revocation order on evidentiary grounds. The Third District Court of Appeal affirmed the judgment and sentence. Lippman v. State, 559 So.2d 1148 (Fla. 3d DCA 1990). Lippman then moved for post-conviction relief under Florida Rule of Criminal Procedure 3.850, arguing that the court order changing his probation conditions was imposed in violation of his constitutional right against double jeopardy, and thus his subsequent incarceration for violating the additional conditions also violated double jeopardy. The trial court denied Lippman relief under rule 3.850. On appeal, the Third District Court of Appeal ruled that the no-contact condition was "a modification of an existing probation condition rather than the imposition of a new condition" and did not violate double jeopardy. Lippman, 595 So.2d at 194. The district court also certified the questions to this Court.

Initially we determine that conditions described in the certified questions constitute enhancements of the original sentence rather than modifications. ² Even though the district court characterized the trial judge's order as a supervisory order entered for the protection of the victim and the victim's siblings rather than a sanction, the motivation for adding these conditions does not change their punitive effect. These "protective" measures required Lippman to leave his employment, move from his residence, and have absolutely no contact with his siblings. The trial judge even acknowledged that the new conditions would be an additional hardship. While such conditions could have been included in the initial probationary order had circumstances required, there is no question that the added conditions are more restrictive than those imposed by the initial order. Consequently, we find that the added conditions, including the no-contact condition, enhanced the terms of Lippman's original probationary sentence.

Both the United States Constitution ³ and the Florida Constitution ⁴ 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; Sec. 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.

The State argues that Lippman is procedurally barred from raising this matter in a rule 3.850 proceeding because it should have been raised on direct appeal from the trial court's modification order. We do not agree. The prohibition against double jeopardy is "fundamental." Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969). As this Court concluded in State v. Johnson, 483 So.2d 420, 423 (Fla.1986), "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a...