Opinion
No. 5D04-4040.
October 21, 2005.
Appeal from the Circuit Court, Volusia County, S. James Foxman, J.
Harvey L. Rogers, Raiford, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
Harvey Lee Rogers ["Rogers"] appeals an order denying a motion to modify his probation. We lack jurisdiction and, accordingly, dismiss the appeal.
In June 2004, Rogers was charged by information with burglary of an occupied dwelling and false imprisonment. He agreed to plead guilty to burglary, with the understanding that he would be sentenced to six years in the Department of Corrections, followed by nine years of probation. Two of the special conditions of Rogers' probation were that he not live within one mile of the victim and that he not have any contact, directly or indirectly, with the victim.
Rogers was sentenced in accordance with his plea. However, while he was serving the incarcerative portion of his sentence, Rogers filed a motion to modify his probation. The motion explained that Rogers intended to reside at 116 Lincoln Street, in Enterprise, Florida, upon his release from prison; that the home had passed to him upon his father's death and was his residence of more than thirty years; and that subsequent to sentencing, the victim had moved into a house directly next door. Rogers asserted that it would be a great emotional and financial hardship on him if, upon his release, he were not allowed to live at his long-term residence or even to go to the property for maintenance. He said that he had no desire to have any contact with the victim, but he wanted the court to change the special conditions of his probation that he not live within one mile of the victim and not have any contact with the victim. The lower court denied Rogers' motion.
The factual basis for Rogers' argument is contradicted by the record in one important respect. The record indicates that when the offense in question occurred, the victim already lived next door to Rogers, with whom she had had a four-year relationship. Rogers may be correct that he entered the plea with the understanding that he would be able to live in his residence upon his release from prison, however, because when the offense occurred, the victim was in the process of moving out of her Enterprise residence.
There are arguably two ways to view this case from a jurisdictional standpoint. If Rogers agreed to the condition of probation about which he now complains (that he would not live within a mile of the victim and have no contact with the victim), Rogers' motion would appear to constitute a post-sentencing motion to modify an agreed-upon sentence, because of events occurring after sentencing (the victim's decision to remain). Alternatively, the action can be viewed as an attempt to enforce the original plea, an argument that Rogers makes for the first time on appeal, based on his assertion that the plea agreement clearly contemplated that he would live in his residence upon his release from prison.
It appears most accurate to treat Rogers' motion as a motion to modify his probation because the plea agreement contains no express provision that he would be permitted to live in his home upon his release and he plainly agreed to the one mile restriction. His complaint appears to be that events occurring after the plea make it inequitable to enforce the restriction to which he agreed. If Rogers' motion is viewed as a motion to modify his probation, we lack jurisdiction because an order denying a defendant's motion to modify probation is not an appealable order. Wesner v. State, 843 So.2d 1039 (Fla. 2d DCA 2003); Ziegler v. State, 380 So.2d 564 (Fla. 3d DCA 1980). In Ziegler, the defendant appealed an order denying his motion for early termination of his probation. The Third District court held that the order was not appealable pursuant to rule 9.140(b)(1)(C) of the Florida Rules of Appellate Procedure (now rule 9.140(b)(1)(D)), which provided for an appeal by the defendant of " orders entered after final judgment or finding of guilt, including orders revoking or modifying probation." Id. (emphasis added). The court explained that:
Even if Rogers' motion were viewed as an attempt to enforce the original plea, as the State argues, we should dismiss the appeal for lack of jurisdiction because of Rogers' failure to move to withdraw his plea.
The defendant has appealed an order denying his motion, filed pursuant to Section 948.05, Fla.Stat. (1977), for early termination of a ten-year period of probation which had been previously and lawfully imposed. Since the authority conferred upon the court by Section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable. Just as the defendant could not have complained to an appellate court if he had been initially denied probation altogether, see Bernhardt v. State, 288 So.2d 490, 494 (Fla. 1974); Arnold v. State, 356 So.2d 862, 863 (Fla. 1st DCA 1978), so, a fortiori, he may not secure review of a refusal to reduce an already existing probationary term. This conclusion is required by the principle that the advisability, as opposed to the legality, of a particular sentence is not subject to appellate review, e.g., Banks v. State, 342 So.2d 469 (Fla. 1976); Infante v. State, 197 So.2d 542 (Fla. 3d DCA 1967), and, even more plainly, by those cases which hold that no appeal may be taken from the denial of a motion for a reduction of sentence filed under Fla.R.Crim.P. 3.800. Hallman v. State, 371 So.2d 482 (Fla. 1979), affirming, 343 So.2d 912 (Fla. 2d DCA 1977); Suggs v. State, 358 So.2d 897 (Fla. 2d DCA 1978); Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968).
Id. (footnote omitted).
There are extraordinary circumstances in which such orders may be reviewable by means of certiorari, but this is a remedy reserved for those situations where there has been "a violation of a clearly established principle of law resulting in a miscarriage of justice." Combs v. State, 436 So.2d 93, 96 (Fla. 1983). In the context of orders denying a defendant's motion to reduce or modify his sentence, certiorari review has been granted where the trial court procedurally erred, such as by denying an order on the basis it was untimely. See Davis v. State, 745 So.2d 499, 499 (Fla. 1st DCA 1999); Roauer v. State, 697 So.2d 1303 (Fla. 2d DCA 1997); Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993).
DISMISSED.
PLEUS, C.J., and ORFINGER, J., concur.