Odom v. State

• Decision Date: 24 June 2009
• Docket Number: No. 1D07-6422.,1D07-6422.
• Citation: 15 So.3d 672
• Parties: Gerald David ODOM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

15 So.3d 672

Gerald David ODOM, Appellant, v. STATE of Florida, Appellee.

No. 1D07-6422.

District Court of Appeal of Florida, First District.

June 24, 2009.

Nancy A. Daniels, Public Defender; and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Gerald David Odom (Appellant) appeals an order revoking his probation based on findings that he willfully, substantially violated three general conditions of probation. Concluding that the record does not demonstrate violations of Conditions (1) and (2), we reverse the revocation order and remand for the trial court to strike these findings and to determine whether the violation of Condition (8) alone justifies the revocation of probation and imposition of the same sentence.

Procedural History

In Circuit Court Case No. 2004-CF-5240, Appellant was charged with burglary of an unoccupied dwelling, dealing in stolen property, and petit theft. In Circuit Court Case No. 2005-CF-0382, he was charged with driving while his driver's license was revoked as a habitual offender. He pled no contest to petit theft and the lesser-included offenses of trespass and grand theft ($300.00 or more) in the 2004 case and to the charged offense in the 2005 case. On April 29, 2005, the trial court accepted the plea and sentenced Appellant, in the 2004 case, to 12 months' probation on two counts and to 36 months' probation for grand theft, all of which were to run concurrently. In the 2005 case, Appellant was sentenced to 12 months' probation, to be served concurrently with the other case. In accordance with the terms and conditions set forth in section 948.06, Florida Statutes (2005), the following are among Appellant's 22 general conditions of probation:

(1) Each month you will make a full and truthful report to your Probation Officer on the form provided for that purpose.

(2) You will pay to the State of Florida the amount of $50.00 per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(8) You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.

On August 24, 2007, an affidavit was filed alleging violations of General Conditions (1), (2), (8), and Special Condition (17). After a hearing, where Appellant was represented by counsel, the trial court orally announced that Appellant willfully, substantially had violated General Conditions (1), (2), and that part of (8) requiring him to report to probation every month between the first and fifth day of the month. The court revoked Appellant's probation and sentenced him to concurrent terms of 30 months' incarceration for the two felonies and to time served for the misdemeanors. The court decided not to base the revocation on Appellant's failure to satisfy his community-service requirements in a timely manner, for Appellant actually completed his service belatedly. Appellant filed a timely notice of appeal.

Subsequently, Appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct purported sentencing errors, in which he specifically challenged the trial court's three grounds for revoking his probation. The court entered an order granting the motion as to a fourth (jurisdictional) claim and directing that the judgment and sentence be corrected to reflect that the violation of probation and sentence applied only to Count Two (grand theft) of the 2004 case; the order set aside the sentence as to the 2005 case. A corrected judgment and sentence was issued. The trial court denied the remaining three claims, concluding that they were not appropriately before the court and citing Jackson v. State, 983 So.2d 562 (Fla.2008).

Standard of Review

An order revoking probation is reviewed for an abuse of discretion. State v. Carter, 835 So.2d 259, 262 (Fla.2002) (noting that the appellate court determines "whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [appellant's] violation was both willful and substantial"). To trigger revocation of probation, a violation must be willful and substantial. Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). Reasonable efforts to comply with a condition of probation cannot be deemed a willful violation. Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996). In a revocation proceeding, the State must prove its case by a preponderance of the evidence. Hopewell v. State, 680 So.2d 600 (Fla. 2d DCA 1996). In very rare circumstances, a trial judge exceeds the broad limits of discretion and commits fundamental error, i.e., error that "reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error," in which instances no contemporaneous objection is required. Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)).

Preservation of Errors Alleged on Direct Appeal

Three potential avenues exist for this Court to consider the merits of the issues raised by Appellant on direct appeal. First, "most trial court errors are subject to the contemporaneous objection rule." Jackson, 983 So.2d at 567-68. As the court explained in Castor v. State, 365 So.2d 701, 703 (Fla.1978):

The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually. To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.

In a similar vein, the Supreme Court of Florida stated later:

The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client's tactical advantage.

F.B. v. State, 852 So.2d 226, 229 (Fla.2003). "Errors that have not been preserved by contemporaneous objection can be considered on direct appeal only if the error is fundamental." Jackson, 983 So.2d at 568. Like the record in Jackson, the instant record unequivocally demonstrates that Appellant's counsel did not make a contemporaneous, specific objection during the revocation hearing to any of the trial court's rulings challenged in this appeal.

Appellant notes that "a defendant has several different options available to raise sentencing errors." Id. Therefore, a second option exists if any of the three issues on appeal constitute a "sentencing error" as contemplated by rule 3.800(b)(2). If so, then pursuant to Jackson, the absence of a timely objection at the revocation hearing required Appellant to preserve the issue by filing a post-sentence motion under rule 3.800(b)(2), which he did. Jackson, 983 So.2d at 567-68; Boyd v. State, 912 So.2d 1293 (Fla. 2d DCA 2005) (concluding that appellant preserved issue challenging the evidentiary basis for imposition of $450 in court costs and $128 in investigative costs by filing a rule 3.800(b)(2) motion); Jones v. State, 898 So.2d 209 (Fla. 2d DCA 2005) (concluding that filing a rule 3.800(b)(2) motion preserved the issue of the trial court's failure to specify the particular conditions that were grounds for probation revocation).

The third option arises where the error is not a "sentencing error" and no contemporaneous, specific objection was made. In such instances, no rule 3.800(b) motion is necessary to preserve the error, but the district court of appeal will apply the stringent "fundamental error" rule. Jackson, 983 So.2d at 567. Although Appellant contends that his three claims constitute sentencing errors of the type contemplated in Jackson and cognizable in a rule 3.800(b)(2) motion, the State correctly responds that these claims are not, in fact, sentencing errors. Rather, Appellant's claims relate to the guilt phase of the revocation proceedings, not to the ultimate sanctions imposed. Jackson, 983 So.2d at 572-73 (stating that sentencing errors under rule 3.800(b) "all involve errors related to the ultimate sanctions imposed"). Appellant misplaces his reliance on materially different facts in opinions like Lee v. State, 826 So.2d 457 (Fla. 1st DCA 2002), in which we concluded that the lack of conformity between the trial court's oral pronouncement and the subsequent written probation revocation order was an issued preserved in the rule 3.800(b)(2) motion. Cf. Jones v. State, 876 So.2d 642 (Fla. 1st DCA 2004) (affirming judgment and sentence following probation revocation, where issue of trial court's revoking probation for appellant's violating conditions neither orally pronounced nor embodied in written order was not preserved by a contemporaneous objection or a rule 3.800(b) motion to correct the error).

Under the circumstances in Lee, defense counsel could not have known at the time of the revocation hearing about any discrepancies between the oral pronouncements and any future written revocation order. In contrast, all of Appellant's claims involve either the issue of adequate notice of the conditions or the sufficiency of the evidence to justify revocation. The trial court made oral findings at the conclusion of the revocation hearing; therefore, defense counsel could have raised the...