Roy v. State

• Decision Date: 29 December 1967
• Docket Number: No. 67--281,67--281
• Parties: Robert David ROY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 52

207 So.2d 52

Robert David ROY, Appellant, v. STATE of Florida, Appellee.

No. 67--281.

District Court of Appeal of Florida, Second District.

Dec. 29, 1967.

As Clarified on Denial of Rehearing Feb. 16, 1968.

Robert E. Jagger, Public Defender, and Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant Robert David Roy appeals from an order revoking his probation in a criminal case, wherein there was a controversy as to when a previously granted probation period was to begin.

On October 3, 1961, two informations were filed in the Pasco County Circuit Court, each charging defendant Roy with breaking and entering with intent to commit a misdemeanor, involving two separate buildings in New Port Richey. On November 20, 1961, Roy with counsel entered a guilty plea to each information, whereupon the Court placed him on probation for a period of two years.

The minutes of the Court for that day show that the Court adjudged defendant guilty of the two offenses and suspended imposition of sentence and 'placed the defendant on probation for two years to run after release on other charges. Both cases to run concurrently'. The 'order of probation' issued by the trial Judge on the same date recites that 'said defendant is hereby placed on probation for a period of Two (2) years to run concurrently'. Special provision (k) in said probation order provides that the '(a)bove probationary terms are to run concurrently with each other, and are to begin on the expiration of any prison sentence presently being served or which the aforesaid may be obligated to serve.'

On March 31, 1965, affidavit of one Carl M. Wells, the local Probation Supervisor, was filed in the Circuit Court proceeding, setting forth that Roy had violated special condition 'k', in that 'the prison term of the aforesaid (Roy) expired on 3/17/65, at which time he was released from Raiford Prison, and he failed to report to the Probation Supervisor in the Dade City Office for supervision, as he was instructed so to do on 2/26/65 by Supervisor James F. Bloodworth, Starke; his present whereabouts are unknown.'

On May 11, 1967, the Court entered order revoking the previous probation, reciting the violation by Roy of the condition of his probation, as specified in the Supervisor's affidavit.

The record here is somewhat vague as to precisely what sentences, and certainly what criminal charges, were pending or outstanding against Roy on November 20, 1961, the date the probation order was entered. The revocation hearing on May 11, 1967, consisted of 53 pages of colloquy between the Court, defense counsel, and the probation supervisor. No evidence was taken, no copies of Court records from other jurisdictions were filed, and the discussion consisted of an informal review of Roy's manifold difficulties with the law in Lake County, Pasco County, and Bradford County, some prior to the probation order and some thereafter.

However, from agreements of the parties in the briefs, the factual situation appears to be as follows: that on November 20, 1961, when the probation order was entered, Roy was then serving two concurrent 5-year sentences in Raiford imposed on March 21, 1960, in Lake County; that at the time, November 20, 1961, there were also charges, not convictions, pending against him in Bradford County 'for larceny and escape' upon which, on March 21, 1962, he was sentenced to a term of 6-months to 3-years on the larceny charge and 1-year on the escape charge, to run consecutively; that the Bradford County cases were the only 'charges' pending against him at the time of the probation order; that on January 4, 1964, the Bradford County larceny charge was vacated by proceedings under Criminal Procedure Rule 1, F.S.A. ch. 924 Appendix and was thereafter nolle prossed by the State, the effect of which was 'to move up' the escape sentence from its previous consecutive position to an inception date of March 21, 1962, and would therefore expire on March 20, 1963; that on August 12, 1963, the two 5-year concurrent Lake County sentences were vacated under C.P.R. No. 1, but on December 21, 1963, he was resentenced thereon to concurrent sentences of 2-years each. Roy was released from the State Prison on March 17, 1965.

As hereinbefore stated, the Probation Supervisor's violation affidavit was filed on March 31, 1965, as a result of which, on the same day, the Court's warrant of arrest was issued. Roy was arrested and brought before the Court for hearing, resulting in the revocation order entered on May 11, 1967. The Court necessarily held that on March 17, 1965, when he was released from the State Prison, the probation period was operative, and when he failed to report to the Dade City Probation Supervisor, he was in violation of the probation order of November 20, 1961.

The question for us here to determine is, from the foregoing complex factual situation, had the 2-year probationary period expired on March 17, 1965? If it had expired, he was no longer bound by the terms of probation under F.S. Sec. 948.04 F.S.A., which provides that upon termination of the period of probation, 'the probationer shall be released from probation and shall not be liable to sentence for the crime for which probation was allowed'. See Ard v. Shelby, Fla.App.1957, 97 So.2d 631. If the probation period had not expired, he was subject to the Court's probation process.

Roy's contention is that, when the Lake County sentences were vacated by C.P.R. No. 1, they became 'voided' under Helton v. Mayo, 1943, 153 Fla. 616, 15 So.2d 416, and that therefore the 2-year probationary period should be construed to run retroactively from November 20, 1961, the date the probation order was entered. The Attorney General, of course, takes the contrary view. In our opinion Helton is not controlling under the facts in the instant case and does not have to be resorted to.

The question here turns upon the legal effect of the provisions specified by the Court in entering the probation order on November 20, 1961. What the Court did on that occasion, and the legal effect thereof, can only be determined by what the official Court records disclose. There are two official sources for this information: one is the minutes of the Court covering that day's business, and the other the order of probation signed by the Judge. The minutes recite that the Court 'placed the defendant on probation for two years to run After release on other charges. Both cases to run concurrently'. (Emphasis supplied). The probation order put Roy on probation for a period of two years in each case, 'to run concurrently with each other and * * * to begin on the expiration of any Prison sentence presently being served or which the aforesaid May be obligated to serve.' (Emphasis supplied).

The confusion between the minutes and the probation order is apparent. In fact, the Court itself at the revocation hearing acknowledged it, as appears from the following record except from the revocation hearing:

'The issue as the Court views it at this time has boiled down to apparent conflict between the judgment of the Court as reflected in the Minutes and the provision 'K' of the Probation Order. The Court is of the opinion that in the first instance what the Court intended is not so significant as what the Court actually did. I think the Court must be bound by what the record says that it did, rather than what the Judge intended, but in this instance, the Court is of the opinion that that (sic) actually what was done and what was said was that the two years probationary period is to run after release on other charges. Now, this doesn't say after a sentence has been served, now pending, or anything else; it says: Release.'

The Judge was correct when he said that 'the Court must be bound by what the record says that it did, rather than what the Judge intended', as the Supreme Court observed in Falagan v. Wainwright, Fla.1967, 195 So.2d 562:

'The basic argument of the State is that the trial judge probably intended to allow credit only for time served under the original Orange County sentence. This may be what he meant, but he also may have meant what he said. The sentence appears to us to be unequivocal. Where the language of a sentence is clear we have no power to change it by speculating that the trial judge meant something else.' (Emphasis supplied).

While there is no priority of authenticity specified by statute, it may fairly be...