Waldon v. State

• Decision Date: 03 April 1996
• Docket Number: No. 94-2055,94-2055
• Citation: Waldon v. State, 670 So.2d 1155 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D802 Carol W. WALDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1155

670 So.2d 1155

21 Fla. L. Weekly D802

Carol W. WALDON, Appellant, v. STATE of Florida, Appellee.

No. 94-2055.

District Court of Appeal of Florida Fourth District.

April 3, 1996.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Mary E. Lupo, Judge, L.T. Case No. 88-1170CFA02.

Richard L. Jorandby, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and William A. Spillias, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

We reverse an order revoking probation because the condition violated was illegally added five years after probation was first imposed and without any finding of a violation of a previously imposed condition.

Defendant was originally convicted in 1989 of lewd and lascivious assault on a child under the age of 16 and placed on 7 years, 7 months probation. As a special condition of probation, she was required to "undergo a Substance Abuse Evaluation and complete any treatment/education program recommended by the Evaluator at [her] own expense." ¹ [e.s.]

Some five years later after sentencing, in November 1993, her probation officer (PO) filed an affidavit of violation of probation (VOP). The affidavit charged her with violating the provision that she complete any treatment program recommended by the evaluator. ² It alleged that she had refused to get in-patient alcohol treatment as instructed by her PO on 21 September 1993. A hearing on that charge was held 3 days later, at which she appeared with counsel. The assistant state attorney and defense counsel announced an agreement in which the VOP was withdrawn, and she agreed that three special conditions would be added as terms of her probation: (1) she was required to surrender herself on the following day to an alcohol detoxification program and remain there indefinitely until released by the program authorities; (2) she would be required to follow any treatment recommended by the program; and (3) she would not be allowed to consume any alcohol at any time. The trial judge approved the agreement and entered an order accordingly.

In March 1994, a new affidavit of VOP was filed, this time charging her with violating two of these new conditions in that she failed to keep an appointment with a counselor and on another date she was intoxicated when she met with her counselor. ³ At a hearing in June 1994, her PO and counselor testified in support of the VOP, and defendant and one of her neighbors testified in opposition. The trial court found that she was guilty of VOP on both counts and sentenced her to 5 1/2 years incarceration. ⁴

Defendant makes two essential arguments against the June 1994 VOP. She first notes that the violation for which her probation was actually revoked arose from a condition that was imposed during the period of the probation at the November 1993 hearing and not at the original sentencing. The violation alleged at the November 1993 hearing itself related to a condition that was imposed by the probation officer and not by the court; but probation, she argues, may not be violated for failing to comply with a condition imposed only by a PO and not by the sentencing court. As she has since been violated for an infraction of a condition imposed only as a result of a failure to follow her PO officer, defendant argues that she has, in effect, been violated purely for failing to follow her PO. Second, and in any event, she argues that the conditions imposed at the VOP hearing in November 1993 were illegal because they were imposed without a finding of a violation of the existing conditions.

The record clearly shows that she did not raise either one of these objections at the June 1994 hearing. Moreover, she expressly agreed to the new conditions at the November 1993 hearing, and did not then and there request dismissal of the November 15th charge on the grounds that it related to a condition imposed by her PO, instead of the judge. The state thus argues that all of her arguments have been waived by both her agreement and her failure to object at either of the two VOP hearings.

We have several times held that probation or community control may not be revoked for violation of a condition or requirement imposed unilaterally by the probation officer but not by the sentencing order. See e.g., Kiess v. State, 642 So.2d 1141 (Fla. 4th DCA 1994); Voudry v. State, 641 So.2d 466 (Fla. 4th DCA 1994); and Ashrafi v. State, 534 So.2d 886 (Fla. 4th DCA 1988); see also Morales v. State, 518 So.2d 964 (Fla. 3d DCA 1988); Hutchinson v. State, 428 So.2d 739 (Fla. 2d DCA 1983) and Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982).

Although her original sentencing order in 1989 required that she "undergo a Substance Abuse Evaluation and complete any treatment/education program recommended by the Evaluator at [her] own expense," [e.s.] it did not expressly authorize her PO to require or prescribe treatment for her. If the record showed that her evaluator in 1989 had recommended in-patient treatment for alcoholism, e.g., there might be at least an arguable claim that she had violated the sentencing order by refusing to get the treatment. As it happens, however, the record is clear that she was ordered to complete any treatment recommended by her evaluator, but the alleged violation concerns her failure to get treatment ordered by her probation officer. Hence we agree that the failure to get treatment charge does not state a proper charge for violation of probation.

The failure to object to a charging document that does not charge a crime is not fatal, however, because the failure to charge a crime is fundamental error. State v. Gray, 435 So.2d 816 (Fla.1983); Tracey v. State, 130 So.2d 605 (Fla.1961); Salas v. State, 544 So.2d 1040 (Fla. 4th DCA 1989); and Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980). It seems reasonable to analogize the failure to charge a crime to the failure to charge a violation of probation. Hence, we agree that defendant's failure to raise an objection to the formal charge of VOP does not constitute a waiver of the issue from appellate review.

The next argument relates to the propriety of enhancing probation during its term by agreement with the probationer but without a violation. In Lippman v. State, 633 So.2d 1061 (Fla.1994), as here, the court confronted a revocation of probation based on a violation of conditions imposed during the probationary term. In the original sentence, the court had imposed only two conditions: that defendant undergo a psychiatric evaluation, and that he be permitted to transfer his probation to another state.

As here, the modification occurred at a VOP hearing where the state had withdrawn an affidavit of violation. The modification added four new conditions: (1) an extension of the period from two to seven years, (2) a requirement that defendant pay for and complete a mentally disordered sex offender program, (3) a prohibition on defendant wearing police uniforms or using police equipment in his new job with the police department, and (4) restrictions on contact with some members of his immediate family. 633 So.2d at 1063. Lippmann did not object to the modification, and did not appeal the modification order.

Several months later, the court revoked his probation for having impermissible contacts with certain members of his family. He appealed the revocation, without raising any contention as to whether the modification had been proper, and the revocation was affirmed. He later filed a motion under rule 3.850 ⁵ arguing that the modification had been in violation of his double jeopardy rights. The trial court denied relief, and the third district affirmed, saying that the restrictions on contact with certain family members was simply a modification of an existing condition and not the imposition of a new one.

As in this case, the state argued to the supreme court in Lippman that defendant was procedurally barred from arguing the invalidity because of his failure to appeal the new conditions in his direct appeal from the VOP. The supreme court rejected this argument, saying:

"We do not agree. The prohibition against double jeopardy is 'fundamental.' Benton v. Maryland, 395 U.S. 784, 795-96, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707 (1969). As this Court concluded in State v. Johnson, 483 So.2d 420, 423 (Fla.1986), "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim." In Johnson, the trial court unconditionally accepted the defendant's nolo contendere plea to several criminal charges, but subsequently vacated the judgment on the basis of information contained in the presentence investigation report. The defendant was then tried on the original charges, adjudicated guilty, and sentenced to 13 years incarceration. The defendant did not appeal the conviction and sentence, but instead filed a rule 3.850 motion for relief on the ground that this violated double jeopardy. This Court held that the constitutional prohibition against double jeopardy applied and that the State had no right to try the defendant at all. Id. at 423.

"Unlike the defendant in Johnson, Lippman did appeal the judge's order, but failed to raise the double jeopardy claim. However, we do not find that this difference distinguishes the instant case from Johnson. As this Court noted in Johnson, a number of courts have concluded that a double jeopardy claim may be raised in a post-conviction relief proceeding. 483 So.2d at 422-23; see also, e.g., Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) (double jeopardy claim not waived even though not raised until federal habeas corpus proceedings were filed at the conclusion of all appeals). Although this Court cautioned 'that there may be limited instances in which a defendant may be found to have knowingly waived...