Meeks v. State, 1D97-2905.

• Decision Date: 13 March 2000
• Docket Number: No. 1D97-2905.,1D97-2905.
• Citation: 754 So.2d 101
• Parties: Timothy MEEKS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 101

Timothy MEEKS, Appellant, v. STATE of Florida, Appellee.

No. 1D97-2905.

District Court of Appeal of Florida, First District.

March 13, 2000.

Nancy A. Daniels, Public Defender; and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Appellant, Timothy Meeks (Meeks), appeals a sentence and judgment of 10 years' incarceration for a violation of community control. Meeks contends, as a youthful offender, that his sentence is illegal because under section 958.14, Florida Statutes (1991)¹, his violation is "technical," rather than "substantive," and therefore the maximum sentence the trial judge can impose is six years, less time served, or the maximum authorized for his original sentence, with credit for time served, whichever is less. See § 958.14, Fla. Stat. We agree, and reverse and remand for resentencing.

On September 11, 1992, Meeks was charged with one count of attempted armed robbery with a firearm, an offense that carries a maximum penalty of 15 years' incarceration. As part of a plea bargain, he entered a plea of nolo contendere in exchange for a youthful offender sentence of 4 years in prison and 2 years of probation, with 65 days of credit for time served. On December 3, 1992, Meeks was sentenced as agreed, except he was given 93 days of credit for time served.

Meeks served his prison term and was released to serve his probationary sentence. On September 24, 1996, an affidavit of violation of probation was filed alleging Meeks had violated several conditions of his probation, including an arrest for trespass after warning, a substantive violation. On November 7, 1996, he admitted violating his probation by committing the crime of trespass after warning. His probation was revoked, and the trial judge sentenced him to 2 years of community control. On January 21, 1997, a violation report was issued charging Meeks with violating his community control by failing to remain confined to his residence on four occasions. On May 8, 1997, a hearing was held and Meeks was found guilty of violating this condition of his community control program. The trial judge revoked Meeks' community control and re-sentenced him to 10 years in prison, with credit for 55 days for time served. This appeal ensued.

The instant case impels us to construe the import of "technical violation" and "substantive violation" under section 958.14, Florida Statutes, and specifically, whether Meeks, as a youthful offender, can be re-sentenced for a substantive violation based upon acts that constitute a willful and substantial violation of community control, but not a separate criminal offense.

When construing a statute, we must follow the intent of the legislature, as expressed by the language of the statute, giving the statutory language its usual and ordinary meaning, unless an ambiguity exists. Graham v. State, 472 So.2d 464 (1985); Holly v. Auld, 450 So.2d 217 (Fla. 1984). A criminal statute is strictly construed in favor of the accused. State v. Jackson, 526 So.2d 58 (Fla.1988).

Section 958.14, Florida Statutes, provides:

Violation of probation or community control program.—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(1). 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.

(emphasis added).

The legislature has not defined what constitutes a "technical violation" and a "substantive violation" to aid us in discerning its intent, and no appellate court has previously construed the statute in the context of the instant case. Therefore, because the language of section 958.14, Florida Statutes, is clear, we examine the ordinary meaning of the term "substantive" as used in the statute. "Substantive" is defined as "being a totally independent entity." Merriam-Webster's Collegiate Dictionary 1174 (10th ed.1998). "Substantive offense" is also defined as "one which is complete of itself and not dependent upon another." Black's Law Dictionary 1429 (6th ed.1990); see also State v. Lamar, 659 So.2d 262 (Fla.1995)

.

In view of these definitions, the normal usage of the phrase "substantive violation" implies a circumstance that is unrelated and disassociated from another circumstance. When this concept is applied to criminal conduct it implies two separate and distinct criminal offenses. Accordingly, when the legislature used the terms "substantive violation," we conclude its intent was to require more than a mere breach of a condition of probation or community control, which is a by-product of the original offense. A separate act that constitutes a violation becomes a substantive one when it involves the commission of a separate criminal offense.

This definition appears to be the one applied by our sister court, although in a factually dissimilar case. State v. Hicks, 545 So.2d 952 (Fla. 3d DCA 1989). In Hicks, the Third District, when reviewing a defendant's original sentence for a separate criminal offense committed after his sentencing as a youthful offender, stated:

Although Hicks had been classified previously as a youthful offender, he was not charged with violating his community control; instead, he was charged with separate substantive criminal offenses. Under these circumstances, the trial court erred in classifying him as a youthful offender.

Hicks, 545 So.2d at 953 (emphasis added). By describing the second offenses as "separate substantive criminal offenses," the court implies that a "substantive violation" is synonymous with a separate criminal offense. We find this language persuasive and adopt this definition of "substantive violation" under section 958.14, Florida Statutes. To attribute any other meaning would do violence to the rules of statutory construction.

We conclude that a "substantive violation" under section 958.14, Florida Statutes, requires the commission of a separate criminal offense by a youthful offender. It necessarily follows that under section 958.14, Florida Statutes, a technical violation is one arising from a transgression by a youthful offender of a condition of probation or community control that does not constitute a separate criminal offense.

We recognize the possibility of confusion arising from the use of the term "substantive violation" in the instant context, contrasted with the "willful and substantial" standard used in the context of revocation of probation and community control. However, they are not to be construed as synonymous. A "willful and substantial violation" of probation and community control under section 958.14, Florida Statutes, will be only a "technical violation" unless it constitutes a separate criminal offense and, thus, a substantive violation. A willful and substantial violation of probation and community control will always be a "technical violation" under section 958.14, Florida Statutes, not a "substantive violation," unless the acts that form the violation also constitute a separate criminal offense.

We are fortified in our conclusion by the fact that the appellate courts of this state by a non-P.C.A. opinion have never affirmed a re-sentencing of a youthful offender for a substantive violation that was not based upon a separate criminal offense. This certainly implies that the prosecutors and the trial courts have reached the same conclusion as we regarding the distinction between substantive and technical violations under section 958.14, Florida Statutes. See Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997)

(youthful offender's admission of marijuana use and to testing positive for marijuana determined to be a separate criminal offense and a substantive violation); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996) (youthful offender's commission of grand theft, burglary, possession of burglary tools and resisting arrest without violence determined to be substantive violations); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995) (youthful offender's failure to pay the costs of supervision of probation, for not reporting, for not seeking employment, and for not trying to get a GED, determined to be technical violations).

For the above reasons, we conclude that Meeks' violation of community control for failure to remain confined to his residence on four dates constitutes a technical violation under section 958.14, Florida Statutes. Thus, Meeks can be sentenced as a youthful offender to no more than six years, less time served, or to a period not longer than the maximum sentence for which he was originally found guilty (15 years with credit for time served), whichever is less. Thus, the trial judge erred by imposing a 10-year sentence. Upon resentencing, the court can sentence Meeks to a period of only six years with credit for time served for his technical violation.

Finding that this decision passes upon a question of great public importance, we certify to the Supreme Court of Florida the following question:

CAN A CIRCUIT COURT RE-SENTENCE A YOUTHFUL OFFENDER FOR A SUBSTANTIVE VIOLATION UNDER SECTION 958.14, FLORIDA STATUTES, WHEN THE ACTS UPON WHICH THE VIOLATION IS BASED DO NOT CONSTITUTE A SEPARATE CRIMINAL OFFENSE?

We also note that the trial court's written judgment incorrectly designates Meeks' offense of attempted armed robbery with a firearm as a "first-degree felony" when, in fact, it is a "second-degree felony." See ...