Opinion
Nos. 1D19-2808 1D19-2809 1D19-2810 1D19-2811 1D19-2812 1D19-2814 1D19-2815
05-24-2021
Danterrius L. HOLTON, Appellant, v. STATE of Florida, Appellee.
Adrian S. Middleton of Middleton & Middleton, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Adrian S. Middleton of Middleton & Middleton, P.A., Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Rowe, J.
Danterrius L. Holton appeals the judgments and sentences entered in seven separate cases after the trial court revoked his probation. Holton asserts that the trial court erred by (1) denying his request for a downward departure sentence; (2) failing to make written findings to explain why he posed a danger to the community under the violent felony offender of special concern statute; (3) failing to enter an order revoking probation in one of the cases; and (4) stating in the orders revoking probation that Holton admitted violating his probation. We lack jurisdiction to address, and thus dismiss, Holton's claim that the court erred in denying his request for a downward departure sentence. We affirm as to the remaining issues because Holton did not preserve his arguments for appellate review.
Facts
Holton pleaded no contest to seven counts of burglary of a dwelling. The trial court sentenced him to seven concurrent terms of five years in prison followed by five years of probation. In 2018, the State filed an affidavit of violation of probation, alleging two violations: Holton left his county of residence without his probation officer's permission, and he was arrested for two counts of possession of a firearm or ammunition by a convicted felon. Holton contested the allegations.
At the violation of probation hearing, the State established that Holton knew that he was not to leave his county of residence, Gadsden County, without his probation officer's permission and that he was prohibited from possessing a firearm.
Next, the State presented the testimony of the officer who made the arrest for the firearm possession. Deputy Dustin Hatcher conducted a traffic stop in Leon County after observing a car travelling at a speed of sixty-four miles per hour in a forty-five-mile-per-hour traffic zone. Stacy Anderson was the driver of the car. Holton was the sole passenger. When Deputy Hatcher approached Anderson, he smelled marijuana coming from the car. He asked Anderson and Holton to exit the car. Anderson admitted that she had marijuana in her purse.
Deputy Hatcher then searched the car. Behind the driver's seat, he found a black and green bag. Anderson and Holton both stated that the bag belonged to Holton. A search of the bag revealed a loaded 9-mm handgun in a holster. Anderson told Deputy Hatcher that the gun was hers, but she had no explanation for why the gun was in Holton's bag instead of her purse.
After Deputy Hatcher testified, the State also presented a recording of a jailhouse phone call between Holton and Anderson. After Anderson explained to Holton the charges brought by the State, Holton expressed confusion about being charged with two counts of possession of a firearm because he "only had one gun."
The defense then presented the testimony of Anderson. She testified that she was Holton's girlfriend and the mother of his child. She claimed that the handgun found during the search of the car was hers. She explained that she left her purse in the car overnight. She and Holton were in a hurry the next morning to leave for work. She placed the handgun in Holton's bag, intending to remove it before he got out of the car. She stated that Holton knew she had a gun, but he did not know that she had placed it in his bag.
Holton testified next. He asserted that Anderson was driving him to work when they were stopped by Deputy Hatcher. Holton knew that Anderson owned a handgun, but he did not know that she had placed it in his bag that morning.
After hearing the testimony presented by the parties and listening to the jailhouse call recording, the trial court found that Holton willfully and substantially violated his probation. At the sentencing hearing, the court found that Holton qualified as a violent felony offender of special concern, and denied Holton's request for a downward departure sentence. The court entered an order finding that Holton violated probation in all seven cases, revoked his probation in all cases, and imposed concurrent prison sentences of 190.8 months. These timely appeals follow.
Analysis
Holton asserts that the trial court erred by: (1) denying his request for a downward departure sentence; (2) failing to make written findings to support his designation as a violent felony offender of special concern; (3) failing to enter a revocation order in one of the cases; and (4) incorrectly stating in the revocation orders that Holton admitted to violating probation. As explained below, Holton has shown no error by the trial court.
As to Holton's argument challenging the trial court's denial of his request for a downward departure sentence, we dismiss this portion of his appeal for lack of jurisdiction. See Wilson v. State , 306 So. 3d 1267, 1272–73 (Fla. 1st DCA 2020), review granted , SC20-1870, 2021 WL 1157838 (Fla. Mar. 26, 2021). A defendant may not appeal from an order denying a downward departure motion unless the defendant alleges that the trial court misunderstood its discretion or that the court had a blanket policy to refuse to exercise that discretion. Id. Holton does not allege that either circumstance is present here. And the record shows that the trial court understood its discretion to downwardly depart. We thus lack jurisdiction to review this discretionary decision by the trial court.
Next, Holton argues the trial court erred by failing to make written findings to explain why he posed a danger to the community under the violent felony offender of special concern statute. We review this issue de novo. See Williamson v. State , 180 So. 3d 1224, 1224 n.1 (Fla. 1st DCA 2015). Holton was classified as a violent felony offender of special concern because he was on felony probation for burglary of a dwelling. § 948.06(8)(c) 12., Fla. Stat. (2018). Because of this classification, the statute requires the trial court to make written findings on whether the defendant posed a danger to the community. § 948.06(8)(e), Fla. Stat. (2018). The trial court did not do so here. Even so, Holton's claim fails for lack of preservation.
Under Florida Rule of Appellate Procedure 9.140(e), a defendant may not raise a sentencing error on direct appeal unless there was a contemporaneous objection to the error or the error was the subject of a rule 3.800(b) motion. See Jackson v. State , 983 So. 2d 562, 569 (Fla. 2008) (explaining that "for sentencing errors, to raise even fundamental error on appeal, defendants must first file a motion under rule 3.800(b)"). Holton never filed a rule 3.800(b) motion arguing that the trial court erred by failing to make written findings to support his designation as a violent felony offender of special concern. Thus, he did not preserve his argument for appellate review. See Brannon v. State , 850 So. 2d 452, 456 (Fla. 2003) ("[T]he failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [a defendant] from raising the error on direct appeal.").
We recognize that in other cases in which the trial court has failed to make the required written findings, this Court has remanded for the entry of a written order that conforms to the trial court's oral pronouncement. See, e.g. , Gettis v. State , 289 So. 3d 560, 560 (Fla. 1st DCA 2020) ; Glenn v. State , 219 So. 3d 1010, 1010 (Fla. 1st DCA 2017). But those cases did not address preservation or discuss whether the defendants had preserved the alleged errors by filing motions under rule 3.800(b). Cf. Schreiner v. State , 163 So. 3d 1293, 1293 n.* (Fla. 1st DCA 2015) (explaining that the appellant preserved the claim that the trial court erred in failing to make written findings that a nonstate prison sanction could present a danger to the public by moving to correct sentencing error). And so, because he failed to preserve his claim by filing a rule 3.800(b) motion, Holton's second claim fails.
Holton's third claim fails for the same reason. Holton argues the trial court erred by failing to enter a written order of revocation of probation in one of his cases. But he did not preserve this argument by raising the issue in a rule 3.800(b) motion. Cf. Chestnut v. State , 145 So. 3d 193, 194 (Fla. 1st DCA 2014) (remanding for entry of a written order of revocation of probation after the appellant preserved the issue in a rule 3.800(b)(2) motion), receded from on other grounds, Mills v. State , 177 So. 3d 984 (Fla. 1st DCA 2015).
In his final claim, Holton argues that the trial court fundamentally erred by stating in its orders revoking probation that Holton admitted to the violation. This court reviews issues of unpreserved fundamental error under the de novo standard. Elliot v. State , 49 So. 3d 269, 270 (Fla. 1st DCA 2010). For an error to be fundamental, "the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Knight v. State , 286 So. 3d 147, 151 (Fla. 2019) (quoting Brown v. State , 124 So. 2d 481, 484 (Fla. 1960) ). To prove that fundamental error occurred, Holton had to show that "the error of the trial judge necessarily and inescapably produced the ultimate jury verdict" and that the error "permeate[d] or saturate[d] the trial" with "basic invalidity." Id. Holton did not make the required showing here.
Section 948.06(2), Florida Statutes (2018), explains the duties of the trial court in a revocation hearing. If the probationer admits to the violation, the court may immediately revoke, modify, or continue the probation. § 948.06(2)(a), Fla. Stat. (2018). If the probationer does not admit to the violation and if the violation is not dismissed, the court must allow the probationer to be heard. § 948.06(2)(d), Fla. Stat. (2018). After the revocation hearing, the court may revoke, modify, or continue the probation. § 948.06(2)(e), Fla. Stat. (2018). "If such probation ... is revoked, the court shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer ... on probation or into community control." Id.
Holton did not admit to violating probation. Even so, the trial court's order revoking probation provides:
ORDER OF REVOCATION OF PROBATION
THIS CAUSE was considered on a violation of Probation charge brought by the State. The defendant was placed on Probation on 3/1/12 for the offense of (CT. 1) BURGLARY OF DWELLING in the Circuit Court of LEON County, for a term of 5 YEARS in accordance with the provisions of Chapter 948 Florida Statutes. The defendant has not properly conducted himself and violated the conditions of Probation in a material respect by.
The offender admitted to the violation allegations contained in the affidavit of violation. The Court found him in violation of conditions (#3), (#3), (#4), (#4), REVOKED AND TERMINATED PROBATION, adjudicated him guilty and sentenced him to 190.8 months Department of Corrections with 316 days credit time served to run concurrent with cases 2012CF91A, 2011CF3750, 2011CF3753A, 2011CF3759, 2012CF41, 2011CF3756A, 2011CF3746A. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served only pursuant to section 921.0017, F.S. $100.00 Cost of Prosecution.
Therefore, it is ORDERED AND ADJUDGED that the defendant's Probation is revoked in accordance with Section 948.06 Florida Statutes. The defendant is remanded to the custody of the sheriff of Leon County for the imposition of sentence in accordance with the requirements of law.
Holton is correct that the order incorrectly states that he admitted to violating his probation. But this statement is no more than a scrivener's error and does not amount to fundamental error. Compare Thomas v. State , 763 So. 2d 316, 316 (Fla. 2000) (explaining that a "patent error" in the written order revoking the appellant's probation did not amount to fundamental error because the error had "no quantitative effect on the sentence"), with Maddox v. State , 760 So. 2d 89, 100 (Fla. 2000) (explaining that "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"). The statement in the revocation order that Holton admitted to the violation had no quantitative effect on Holton's sentence so it cannot be classified as a fundamental error. Thus, for this error to be reviewable on appeal, Holton had to have filed a rule 3.800(b) motion. Thomas , 763 So. 2d at 316 n.1. He did not, and so this claim also fails for lack of preservation.
The trial court may have stated that Holton admitted to the violation based on the court's finding that Holton admitted to possessing the handgun during the recorded jailhouse phone call. Our review of the record (including the recording of the jailhouse call) shows that there was competent, substantial evidence to support that finding. See Rodgers v. State , 171 So. 3d 236, 238 (Fla. 1st DCA 2015) (explaining that a trial court's finding that a probationer willfully and substantially violated probation "must be supported by competent, substantial evidence").
DISMISSED in part; AFFIRMED in part.
Makar and Osterhaus, JJ., concur.