State v. Lafave

• Court: Florida District Court of Appeals
• Writing for the Court: MORRIS
• Citation: State v. Lafave, 113 So. 3d 31 (Fla. App. 2012)
• Decision Date: 09 October 2012
• Docket Number: No. 2D11–5209.,2D11–5209.
• Parties: STATE of Florida, Petitioner, v. Debra LaFAVE, Respondent.

113 So.3d 31

STATE of Florida, Petitioner,

v.Debra LaFAVE, Respondent.

No. 2D11–5209.

District Court of Appeal of Florida, Second District.

Aug. 15, 2012.

Rehearing Denied Oct. 9, 2012.

Pamela Jo Bondi, Attorney General, Tallahassee; Robert J. Krauss, Chief Assistant Attorney General; and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Petitioner.

John M. Fitzgibbons and B. Kay Klein of The Law Offices of John M. Fitzgibbons, Tampa, for Respondent.

MORRIS, Judge.

In this proceeding, the State seeks certiorari review of the circuit court's order granting Debra LaFave's motion for early termination of probation which was entered in direct violation of the negotiated plea agreement she entered into with the State for a downward departure, nonprison sentence. Although the State has no statutory right of appeal in this instance, we hold that we have jurisdiction to review its petition for common law writ of certiorari. We grant the State's petition in order to correct a departure from the essential requirements of the law resulting in a gross miscarriage of justice.

I. Facts

Debra LaFave, a school teacher, was charged in Hillsborough County with two counts of lewd or lascivious battery, see§ 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. She was also charged in Marion County for committing additional incidents of sexual battery against the same child in that county.

Her two Hillsborough County charges, both second-degree felonies, were each punishable by up to fifteen years in prison. See§ 775.082(3)(c), Fla. Stat. (2003). However, under the Criminal Punishment Code, her lowest permissible sentence was 15.1875 years in prison. See§§ 921.0024(2), .00265(1), Fla. Stat. (2003).

Pursuant to a negotiated plea agreement with the State, LaFave pleaded guilty in 2005 to the Hillsborough County charges in exchange for a nonprison sentence of supervision, which was a downward departure from the prison requirements of the Criminal Punishment Code. The circuit court accepted her plea, according to the agreement, and sentenced her to three years of community control to be followed by seven years of sex offender probation. As an express condition of her plea agreement, LaFave agreed to serve her entire sentence and to not seek early termination of probation. This agreement was ratified and confirmed by the circuit court by virtue of its acceptance of her negotiated plea. Subsequent to her plea in Hillsborough County, the State Attorney's Office in Marion County dropped the Marion County charges against her, deeming the matter resolved by the Hillsborough County disposition.

Six years into her ten-year nonprison sentence, LaFave unabashedly sought early termination of her probation in 2011 in direct violation of her plea agreement. She asked the circuit court to terminate her sex offender probation four years early. On October 3, 2011, over objections from both the state attorney and the Department of Corrections, the circuit court granted her motion and terminated her probation as requested. The circuit court's order was filed on October 5, 2011. The State filed its petition for writ of certiorari in this court on October 21, 2011.

II. AnalysisA. Jurisdiction.

i. The State has no right of appeal in this case.

LaFave has forcefully argued, and we agree, that the State has no right of appeal in this case. The State's right to appeal in a criminal case is available only as provided by statute. See State v. McMahon, 94 So.3d 468 (Fla.2012); State v. MacLeod, 600 So.2d 1096, 1097 (Fla.1992). Section 924.07(1), Florida Statutes (2011), sets forth the limited circumstances in which the state has a right to appeal. Rule 9.140(c) of the Florida Rules of Appellate Procedure “serves as the procedural counterpart to section 924.07 [and] lists the same types of orders that the State may appeal in a criminal case.” McMahon, 94 So.3d at 473. Neither the statute nor the rule specifically provides the State with a right to appeal a circuit court order granting early termination of probation.

Pursuant to section 924.07(1)(e) and (i) and rule 9.140(c)(1)(M), the State may appeal an illegal sentence or a downward departure sentence. But there is no authority for the State to appeal either a modification or termination of probation because a modification or termination of probation does not result in the imposition of a sentence. See State v. Blackman, 488 So.2d 644, 644 (Fla. 2d DCA 1986); State v. Gray, 721 So.2d 370, 371 (Fla. 4th DCA 1998); see also State v. Russell, 67 So.3d 1179 (Fla. 4th DCA 2011) (relying on Gray in dismissing a state appeal of an order modifying probation).

In State v. Brooks, 890 So.2d 503 (Fla. 2d DCA 2005), with facts uniquely similar to those in LaFave's case, we concluded that the State had a right to appeal a circuit court order granting the defendant's timely motion to reduce or modify a sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As a result of the motion, the circuit court converted the defendant's prison sentence to sex offender probation. 890 So.2d at 504. We held that because the new modified sentence constituted a downward departure sentence, an appeal was authorized pursuant to section 924.07(1)(i). We concludedthat the circuit court erred in granting the defendant's motion and mitigating her original prison sentence to probation because the original prison sentence was a result of a negotiated plea agreement with the State. 890 So.2d at 505. LaFave's situation is distinguishable from the defendant's situation in Brooks because LaFave's early termination of probation cannot be construed as a sentence for purposes of section 924.07(1)(e) and (i), even under the most tortured legal reasoning.

Because the law is clear that the categories enumerated in section 924.07 are the only bases upon which the State may appeal as a matter of right, see, e.g., McMahon, 94 So.3d at 471;MacLeod, 600 So.2d at 1098, and because none of the enumerated categories are applicable in this case, we therefore conclude that the State may not appeal the circuit court order terminating LaFave's probation.

ii. This is an extraordinary circumstance under which the State may seek common law certiorari review in the absence of a right to appeal.

In Jones v. State, 477 So.2d 566, 566 (Fla.1985), the Florida Supreme Court addressed whether an order dismissing violation of probation charges could be reviewed by certiorari when the district court had already determined that there was no statutory basis for appeal. In deciding that the State could not seek certiorari review of such an order, the court noted its prior holdings that “no right of review by certiorari exists if no right of appeal exists.” Id. (citing State v. C.C., 476 So.2d 144 (Fla.1985), and State v. G.P., 476 So.2d 1272 (Fla.1985)).

Notably, Chief Justice Boyd—in a special concurring opinion—cautioned that the court's holding should not be read to mean that “when there is no entitlement to an appeal, certiorari is ipso facto not available as a remedy.” Id. at 567 (Boyd, C.J., specially concurring). Rather, Chief Justice Boyd noted that in G.P., 476 So.2d 1272, the case on which the majority relied in denying the state relief, certiorari was deemed not available because the common law prerequisites for certiorari relief were not met. 477 So.2d at 567. Chief Justice Boyd continued by noting that while “certiorari review may not be made into a substitute [for appellate review], ... the common[ ]law writ of certiorari is within the jurisdiction of the district courts of appeal and issuable in the appellate court's discretion under certain circumstances when there is no right of appeal.” Id. at 568. Chief Justice Boyd then went on to explain that certiorari review is very limited, is not available to review mere legal error, and should only be exercised where there has been a departure from the essential requirements of the law resulting in a gross miscarriage of justice. Id. at 569.

In State v. Pettis, 520 So.2d 250, 253 (Fla.1988), the Florida Supreme Court cited Jones for the proposition that “no right of review by certiorari exists in criminal cases if no right of appeal exists.” The court limited this holding “to orders of final dismissal” and stated that it should not be “construed to prohibit district courts of appeal from entertaining state petitions for certiorari from pretrial orders in criminal cases.” Id. In his dissent, Justice Shaw stated that “the majority adopt[ed] an overly restrictive view of [the] right to petition for certiorari.” Id. at 256 (Shaw, J., dissenting). Justice Shaw opined that Jones incorrectly relied on G.P., 476 So.2d 1272, which had, in turn, incorrectly relied on C.C., 476 So.2d 144.520 So.2d at 256. Justice Shaw commented that the issue of the State's right to seek certiorari review was not addressedby C.C. and that the court in G.P. therefore “took a quantum leap by announcing that the state has no greater right by certiorari than it does by appeal.” Id. In doing so, Justice Shaw stated that G.P. and Jones “directly conflict [ed] with decades of well-established case law,” including State v. Harris, 136 So.2d 633 (Fla.1962).

In Harris, the Florida Supreme Court was asked “whether the state has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the state and favorably to an accused.” Id. at 634. The court rejected the defendant's assertion that section 924.07 somehow limited the state's right to seek certiorari review, stating that “[t]he statute deals only with direct appeals in criminal proceedings and clearly does not and was not intended to proscribe the authority of the state to seek either common law certiorari now exercised by the district courts or constitutional certiorari of the variety now exercised by this Court.” 136 So.2d at 634. Notably, Harris...