Randolph v. State

• Decision Date: 25 January 2023
• Docket Number: 4D21-3052
• Parties: CHARLES W. RANDOLPH, JR., Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

CHARLES W. RANDOLPH, JR., Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D21-3052

Florida Court of Appeals, Fourth District

January 25, 2023

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit St. Lucie County; Lawrence Michael Mirman, Judge; L.T. Case No. 56-2018-CF-003027-A.

Carey Haughwout, Public Defender, and Robert Porter, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III Assistant Attorney General, West Palm Beach, for appellee.

Conner, J.

Charles W. Randolph, Jr. ("Defendant") appeals the order revoking his probation and the judgment and sentence imposed after he admitted violating one condition of probation and waived a hearing on additional alleged new law violations. Defendant argues the trial court improperly considered evidence of the new crimes in revoking probation and imposing sentence. After determining that the bright-line rule announced in Norvil v. State, 191 So.3d 406 (Fla. 2016), does not apply to violation of probation ("VOP") proceedings, and the errors alleged by Defendant were invited, we affirm the trial court.

Background

In 2018, Defendant entered a negotiated plea of no contest to one firearm offense and nine drug-related offenses. He was sentenced to prison, followed by probation. Soon after his release from prison, a VOP affidavit was filed, alleging Defendant violated condition 2 of the probation order by failing to pay cost of supervision; condition 5 by failing to live without violating any law; condition 7 by unlawfully possessing drugs; and condition 10 by failing to pay court costs. Regarding condition 5, Defendant was alleged to have committed eleven new crimes. Defendant was arrested for VOP while in jail after his arrest on the new crimes.

At the time of his VOP hearing, Defendant was represented by two attorneys: one for the VOP, and another for the new crimes. The state made a plea offer that would resolve the VOP case and all the new crimes. Defendant rejected the offer, but rather than proceed with a VOP trial, Defendant entered an open plea admitting he violated condition 2 (failure to pay cost of supervision) only. After the state alerted the trial court that it wanted to "address the issue of [Defendant] admitting only as it relates to the condition 2," the state and VOP counsel discussed how they would proceed in light of Defendant admitting only a violation of condition 2:

State: I think [Defendant] can … argue to the Court why he wasn't in violation of all of those [other alleged violations]. … I am still going to be presenting evidence and argument related to all of the other violations. …

….

VOP counsel: I understand … [H]e's pleaing [sic] to the condition 2.

Court: Mm hmm. (Phonetic.)

VOP counsel: Not to the new crime related issues because [Defendant is] contesting them. I'm only gonna address condition 2. The State if they wanna describe and (indiscernible) entwine facts I don't think I can stop [that].

Court: Mm hmm. (Phonetic.)

VOP counsel: Uh, but as long as, Your Honor makes a ruling, and (indiscernible) in violation of condition 2 and not the additional … it'll be a legal proceeding.

State: I think we're gonna be having a VOP hearing …

Court: Right. I think so. I think the State turns out to be right there. … [Defendant] doesn't wanna go forward with a hearing cause he's admitting that the State can prove by the greater weight of the evidence condition 2. It's sort of like a no contest plea, but for sentencing purposes the State could still rely on everything else in the affidavit … for argument purposes in that regard. I mean a violation is a violation. … [S]o he can't limit you by his plea to … arguments for sentencing. I think that's the situation.

VOP counsel: Yes Judge.

….

Court: … [Defendant] doesn't [want to] have the hearing cause he realizes he's gonna lose the hearing as far as condition 2, but he's not conceding that he violated the other ones, but that won't preclude the State from being able to say, you know, these are already also alleged, and the Court can rely on … [these] because he can't limit … [the State] in that regard.

VOP counsel: Yeah, I explained to him, Judge that … even if these charges were dismissed he could still be held accountable for them on violation of probation. … [I]t's strategically better for him not to resolve all the cases at once cause the score's lower. So, he's just gonna belly up on condition 2 ….

(emphasis added).

The parties then discussed the calculation of Defendant's scoresheet for only the VOP. After conferring with VOP counsel off record regarding the possible sentences with the VOP and his new charges, on the record Defendant confirmed he wanted to proceed with his original plan to reject the State's offer to resolve all of the VOPs and new charges together and proceed with a plea only as to condition 2. The trial court acknowledged Defendant's decision and proceeded only with the VOP as to condition 2. The trial court again addressed Defendant as to how the case would proceed:

Court: Okay. So, you're entering an open plea admitting to the violation. I realize you're admitting one condition, but as I mentioned before … if you violated, you violated, and then the only issue is what's the appropriate sentence. I'll determine that. Nobody knows, especially me, what I'm gonna do. … [A]nd the parameters, the limitations for me, are the ScoreSheet parameters which are legal sentence absent a departure would be 21.05 months to 50 years. Do you understand that?

Defendant: Yes sir.

Court: Okay. So, the only rights you're giving up are the right to a hearing, and you're giving up that right to hearing as to the violation because you and your lawyer discussed at a minimum as condition 2 you're not contesting that the State could prove that so let's proceed to sentencing and discuss what an appropriate sentence is. You understand that?

Defendant: Yes sir.

(emphasis added).

After accepting the VOP admission as to condition 2, the trial court proceeded to sentencing. The state introduced physical evidence and testimony of a detective who participated in executing two recorded controlled buys for drugs and a firearm between a confidential informant and Defendant. The state also presented evidence that Defendant possessed firearms. Additionally, the state presented evidence of the search of the residence where the controlled buys occurred and of Defendant's arrest for the controlled buys.

VOP counsel cross-examined the detective, focusing on the fact that Defendant was not present during the search of the residence and the drugs in the residence were not on Defendant's person. When the trial court offered VOP counsel the opportunity to present evidence, VOP counsel declined.

The evidence presented for sentencing addressed only the controlled purchases, possession of a firearm, the search of the residence, and Defendant's arrest. Nothing was presented regarding violation of conditions 2 or 10. VOP counsel raised no objection to the evidence presented by the state or to the course of the proceedings.

After sentencing, Defendant gave notice of appeal.

Appellate Analysis

Defendant claims the trial court fundamentally erred in denying him due process during his VOP hearing and sentencing in two respects. First, Defendant argues that the trial court denied him due process in failing to hold a violation hearing on the unadmitted alleged VOPs, as required under the applicable statute, and, instead, the trial court accepted his admission as to violation of one condition and proceeded to sentencing without addressing the other alleged violations. Second, Defendant argues that the trial court denied him due process by considering evidence of the unadmitted alleged violations during the sentencing hearing, asserting such evidence was an impermissible sentencing factor. Because the challenges were not preserved below, Defendant claims fundamental error and seeks a new violation hearing before a different judge.

In terms of entitlement to a new VOP hearing, fundamental error is one that "reach[es] down into the validity of the trial itself to the extent that a [finding of guilt] could not have been obtained without the assistance of the alleged error." Milanes v. State, 296 So.3d 933, 937 (Fla. 4th DCA 2020) (quoting Harrell v. State, 894 So.2d 935, 941 (Fla. 2005)). We have noted that "[t]he doctrine of fundamental error must be exercised cautiously and rarely." Id.

Our supreme court has explained what may constitute fundamental error in sentencing as follows:

[I]n order to be considered fundamental, an error must be serious. In determining the seriousness of an error, the inquiry must focus on the nature of the error, its qualitative effect on the sentencing process and its quantitative effect on the sentence. See [Bain v. State, 730 So.2d 296, 304-05 (Fla. 2d DCA 1999)]. In most cases, a fundamental sentencing error will be one that affects the determination of the length of the sentence such that the interests of justice will not be served if the error remains uncorrected.

. . . .

Thus, an error that improperly extends the defendant's incarceration or supervision likely would impress us as fundamental.

Maddox v. State, 760 So.2d 89, 99-100 (Fla. 2000) (quoting Bain, 730 So.2d at 305). Further, "[a] trial court's consideration of improper factors in sentencing constitutes a denial of due process," which amounts to fundamental error. Turner v. State, 261 So.3d 729, 737-38 (Fla. 2d DCA 2018); see also Hillary v. State, 232 So.3d 3, 4 (Fla. 4th DCA 2017).

We review de novo whether a trial court provided due process. Hill v. State, 246...