Rita v. State

• Decision Date: 06 June 1985
• Docket Number: No. AX-240,AX-240
• Citation: 470 So.2d 80,10 Fla. L. Weekly 1397
• Parties: 10 Fla. L. Weekly 1397 Edmund P. RITA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 80

470 So.2d 80

10 Fla. L. Weekly 1397

Edmund P. RITA, Appellant, v. STATE of Florida, Appellee.

No. AX-240.

District Court of Appeal of Florida,

First District.

June 6, 1985.

Leonard Rosenberg, P.A., Miami, and J. Victor Africano, Live Oak, for appellant.

Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Edmund Rita appeals two orders of the Suwannee County Circuit Court. The first order denied his rule 3.850 motion for post-conviction relief based on alleged deprivation of his constitutional right to counsel; the second order revoked his probation and imposed a sentence of imprisonment. Rita raises three points on appeal: (1) Error in denying his 3.850 motion on grounds that he was on probation and thus not a prisoner in custody under sentence when the motion was made; (2) the legal insufficiency of the evidence to establish that he had constructive possession of the illicit drugs alleged as the basis for revocation of probation; and (3) error in failing to sentence him in accordance with the sentencing guidelines. We reverse on the first two points and find it unnecessary to reach the third.

In 1980 Rita was charged in Suwannee County with illegally possessing cocaine and narcotic paraphernalia and with illegally possessing controlled substances, i.e., Diazepam and Methaquaalone. He pled nolo contendere to all charges, reserving the right to appeal the denial of his motion to suppress. On September 16, 1980, he was adjudicated guilty and ordered to serve concurrent sentences of five years probation, conditioned on paying a $2500 fine and serving thirty days in jail. The ruling on the motion to suppress was affirmed on appeal. Rita v. State, 409 So.2d 185 (Fla. 1st DCA 1982).

The conditions of probation required, among other things, that Rita remain at liberty without violating the law and that he not possess illegal drugs. In August 1983 affidavits for revocation of probation were filed in the court below alleging that Rita had violated these conditions. The alleged violations arose out of an incident on June 21, 1983, in Dade County that resulted in criminal charges being filed against Rita for possession of more than 2000 pounds of cannabis.

After the affidavits were filed Rita was returned to Suwannee County and held in jail under a $150,000 bond pending his revocation hearing. While in jail awaiting the hearing, Rita filed a motion under rule 3.850, Florida Rules of Criminal Procedure, ¹ alleging he was denied effective assistance of counsel in the 1980 proceedings which had resulted in his probation. The state responded with allegations that Rita had been "adjudicated guilty and placed on probation" and was now "incarcerated in lieu of $150,000 bond on a violation of probation warrant." Consequently, the state contended, Rita lacked standing to seek post-conviction relief pursuant to rule 3.850 since he is not "a prisoner in custody under sentence of a court." The trial court agreed and denied the motion solely on this ground.

We hold that the trial court erred in ruling that Rita had no standing to make a rule 3.850 motion. This rule was formerly Criminal Rule 1 and has the same scope as the common law writ of habeas corpus. Gideon v. Wainwright, 153 So.2d 299, 300 (Fla.1963). The meaning of "custody" as used in rule 3.850 is the same as that applied to determine the right or standing of a person to petition for a writ of habeas corpus. State v. Barber, 301 So.2d 7 (Fla.1974). It has long been recognized that a person serving probation is sufficiently restrained in his liberty to have standing to seek review of the validity of his conviction in a habeas corpus proceeding. Ex Parte Bosso, 41 So.2d 322 (Fla.1949). In this instance Rita was being restrained in jail pursuant to the order of probation and awaiting a hearing on revocation. Surely he was then being restrained in custody just as much as if he were serving the thirty days in jail imposed as a condition of probation under the so-called split sentence authorized by sections 948.01-.03, Florida Statutes. The appellate courts of this state have been routinely reviewing the denial of rule 3.850 motions filed by persons in custody under a split sentence imposing imprisonment and probation. See, e.g., Chaney v. State, 452 So.2d 1148 (Fla. 5th DCA 1984); Roberts v. State, 400 So.2d 475 (Fla. 5th DCA 1981); Bruno v. State, 395 So.2d 631 (Fla. 1st DCA 1981); Hollingsworth v. State, 394 So.2d 580 (Fla. 5th DCA 1981). Discerning no substantial reason for distinguishing between being a prisoner in custody while awaiting a revocation hearing and a prisoner in custody to fulfill a condition of probation, we conclude that Rita had standing to make his 3.850 motion in this instance.

The state necessarily concedes that Rita was in custody, but contends he was not under sentence within the meaning of that requirement in rule 3.850, and relies on Ferguson v. Stone, 415 So.2d 98 (Fla. 4th DCA 1982), and Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981), rev. den., 417 So.2d 328 (Fla.1982), as authority for Rita's lack of standing under the language used in rule 3.850. We find that neither case is inconsistent with our holding. In Ferguson, unlike the instant case, the court withheld adjudication of guilt and placed the accused on probation. Ferguson was not in jail when the motion was filed. The court simply noted in a footnote that "petitioner is not a prisoner in custody under sentence, as Florida Rule of Criminal Procedure 3.850 requires," and could not seek post-conviction relief under that rule, citing Bellcase, 415 So.2d at 99, n. 1.

In Bellcase the petitioner was placed on probation after conviction (we assume after an adjudication of guilt, although the opinion is not clear on this point). His probation was conditioned on serving eleven months, thirty days in jail, which had been served when the motion was made. The court, citing Weir v. State, 319 So.2d 80 (Fla.2d DCA 1975), held that the petitioner was no longer in custody under a sentence since his probation was not a sentence under Villery v. The Florida Parole & Probation Board, 396 So.2d 1107 (Fla.1980).

In Weir the petitioner had been adjudicated guilty of grand larceny in 1943 and sentenced to three years in state prison. More than thirty years later Weir moved to have the judgment vacated and the record expunged on the ground that he had been unconstitutionally denied the right to counsel recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and its progeny. Stating that "the customary vehicle for post-conviction relief is Rule 3.850," the court concluded that Weir had long ago served his entire sentence and could not be considered in custody under sentence within the meaning of that rule. 319 So.2d at 81. Acknowledging that Gideon was retroactive in application, the court held that Weir, even though he had completed his sentence, was nevertheless entitled to seek such relief and that the proper procedure was a petition for writ of coram nobis filed in the sentencing court.

It is perfectly apparent that Weir neither considered nor decided the question before us. Nor are we convinced that Bellcase is dispositive of this issue. State v. Barber, 301 So.2d 7 (Fla.1974), remains good law unless the holding in Villery v. The Florida Parole & Probation Board, 396 So.2d 1107 (Fla.1980), must be read as applying not only to the meaning of "sentence" as used in section 947.16(1), Florida Statutes (1979), governing the right to parole, but also to the term "custody under sentence," as used in rule 3.850. Villery, however, had no occasion to consider this language of rule 3.850, and we are convinced that Villery should not be so read. The problem with such an expansive reading of Villery is aptly described in the concurring opinion of Justice Overton. The Villery court was called on only to determine the meaning of "sentence" for parole purposes as used in section 947.16(1) in the context of a person on probation after serving time in prison pursuant to a split sentence under sections 948.01-948.03, Florida Statutes (1979), and the actual holding in that case is necessarily limited to the meaning of "sentence" under section 947.16(1). Therefore, our construction of "custody under sentence" in rule 3.850 is entirely consistent with State v. Barber, 301 So.2d 7 (Fla.1947), and Ex Parte Bosso, 41 So.2d 322 (Fla.1949), and is manifestly not inconsistent with the actual holding in Villery.

We next consider the sufficiency of Rita's motion on the merits, bearing in mind that the order below must be affirmed if the record reveals other competent grounds for doing so. Rita's motion alleged in part that he had advised his lawyer in the original proceeding, Mr. Taylor, that his girlfriend had placed the vials containing the alleged cocaine and the pouch containing the narcotic paraphernalia in his clothing when she ejected him from their home in Massachusetts during a domestic quarrel, that he had not placed any pills in his clothing, and that both he and the girlfriend would so testify; that he had told his lawyer he had not been aware of the presence of any contraband in his clothing prior to arrest; that his lawyer told him that the case would be thrown out on a motion to suppress, and that:

Without conducting any discovery whatsoever, Mr. Taylor filed a Motion to Suppress, had a hearing held upon said Motion, which Motion was denied. Immediately after the Court's denial of the Motion to Suppress, Mr. Taylor advised this Defendant to plead nolo contendere to all charges against him, reserving his right to appeal the denial of the Motion to Suppress. Mr. Taylor assured the Defendant that there was no sense going through a trial, as the Appellate Court would surely reverse the Court's ruling on his Motion to Suppress.

Relying totally on the advice of Mr. Taylor, the Defendant changed his pleas to all four (4) charges in...