No. 3D16-1539 No. 3D18-944 No. 3D18-1625 No. 3D18-1722 No. 3D18-1771 No. 3D18-2282
Rae Shearn PA, and Rae Shearn, for appellant. Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 12-30062 Appeals from the Circuit Court for Miami-Dade County, Victoria R. Brennan, Judge. Rae Shearn PA, and Rae Shearn, for appellant. Ashley Moody, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee. Before SALTER, LOGUE and LINDSEY, JJ. SALTER, J.
Judge Nushin Sayfie issued the post-conviction orders sought to be reviewed by the appellant (pro se) in the five later cases consolidated here with Case No. 3D16-1539.
Thaddeus Chaylon Martin appeals a judgment and sentence finding him in willful and substantial violation of probation and sentencing him, as a violent felony offender of special concern, to five years on count 1 (false imprisonment) and ten years on count 2 (aggravated battery) (concurrently with the sentence as to count 1). We have consolidated that appeal, Case No. 3D16-1539, with five other and subsequent pro se cases filed by Martin seeking relief from the trial court's: denial of Martin's motion to withdraw his plea (Case No. 3D18-944); denial of his motion to dismiss the lower tribunal case for fraud and perjury (Case No. 3D18-1625); denial of Martin's motion for rehearing regarding his supersedeas bond (Case No. 3D18-1722); and denial of a motion for clarification following his post-conviction motions (Case No. 3D18-1771); as well as the transfer to this Court of Martin's petition for habeas corpus (Case No. 3D18-2282, improperly filed initially in the Florida Supreme Court as Case No. SC18-1544).
Upon our review of these cases, and following the withdrawal of his private counsel, we consolidated them and directed the appointment of an attorney to represent Martin, finalize the record on appeal, and brief the merits. Martin's current, appointed counsel completed these tasks in a highly professional manner (despite Martin's erroneous view that he could continue to file myriad pro se motions, letters, and notices after his counsel was appointed), and the cases are now ready for consideration and disposition.
The State also responded professionally, particularly in light of court reporter and other delays resulting in almost three years of delay between the filing of the notice of appeal from the judgment and sentence and the filing of appointed counsel's initial brief.
Background and Procedural History
The underlying criminal case commenced in the circuit court in 2012. Martin was charged with kidnapping with a firearm (count 1) and aggravated battery with great bodily harm (count 2). The victim, Martin's girlfriend of three years, was ordered out of a car at gunpoint and beaten to the point of unconsciousness.
In 2013, Martin and the State entered into a written plea agreement whereby he entered a plea of guilty to a reduced charge of false imprisonment (count 1) and to the charge of aggravated battery with great bodily harm (count 2). As to count 1, the plea agreement specified that adjudication would be withheld and Martin would be placed on one year of reporting probation, concurrent with count 2, with all the terms to be set forth in count 2.
As to count 2, the plea agreement specified that he would be adjudicated guilty, afforded credit for all time served, and then placed on reporting probation for one year, concurrent with count 1. Special conditions of probation were imposed, including the completion of the domestic violence intervention program, a stay away order, and random drug testing at work, school, or both.
Two months later, Martin was charged with violations of probation after an arrest for resisting a law enforcement officer without violence and for disorderly conduct at 4 a.m. in a residential area. Martin admitted to these violations in May 2014. His probation was revoked, and he was sentenced to 18 months in state prison on count 2 with credit for time served, followed by a new 18-month term of probation on count 1 and on count 2 (concurrent with count 1).
In January 2015, a motion for clarification of the original (2013) and 2014 sentences was heard by the trial court, based on a discrepancy between the written plea agreements and oral pronouncements during each plea colloquy, on one hand, and the written sentences in the court file, on the other. The Department of Corrections noticed the discrepancy and sought the clarification. The discrepancy was that the concurrent term of probation on count 2 was not included in the written sentences in 2013 and 2014, prepared after the approval of the plea agreements and the oral pronouncements.
In January 2015, with Martin present at the hearing, the trial court addressed the motion for clarification. After confirming that the original 2013 plea agreement imposed a concurrent term of probation on count 2 for 12 months, and the 2014 plea agreement for a concurrent term of probation on count 2 for 18 months, the assigned Assistant State Attorney and Assistant Public Defender agreed to the entry of corrected sentences as to count 2, each signed January 23, 2015, nunc pro tunc to the original sentence dates of April 29, 2013, and May 16, 2014, respectively.
After Martin was released from state prison on the 2014 violation of probation plea and sentence, his probation officer visited Martin's designated residence, accompanied by officers of the Miami-Dade Police Department. A search of Martin's home in November 2015 turned up a .22 caliber rifle, a loaded Ruger 9 millimeter handgun, a Samurai sword, and a baggie of cannabis. Martin's probation officer filed an affidavit of violation of probation which included the "possession, carrying, or owning" of the firearms and sword, as well as an arrearage of $41.60 for costs of supervision and a violation of the condition prohibiting the use of intoxicants to excess or possessing marijuana.
The trial court conducted an evidentiary hearing on the violation of probation charges in April 2016. The witness testimony conflicted regarding the ownership and control of the weapons and the marijuana found in the home, the number of occupants and the rooms used by them, and the degree of cooperation or opposition provided by Martin during the course of the November 2014 search. A shirt identified in the room where the rifle and sword were found (described by the probation officer as "Martin's bedroom") had the name "Creepa" on the top right front pocket. This matched a tattoo on Martin's chest. Martin also had a key for that bedroom door on a chain around his neck.
On May 17, 2016, at a hearing at which Martin was not present (though some of his family members were present), the trial court advised that it would announce its anticipated ruling on the violations orally but would not issue a written order on those issues until the sentencing hearing. On May 24, 2016, the State filed a memorandum in support of classification of Martin as a Violent Felony Offender of Special Concern (VFOSC) under section 948.06(8), Florida Statutes (2016).
Two days later, with Martin present in court, the trial court conducted a sentencing hearing. The following day the trial judge filed its order finding, by the preponderance of the evidence presented, that Martin willfully and substantially violated probation, possessing the rifle, samurai sword, and marijuana. The court found further that Martin "is a danger to the community, an unsuitable candidate for probation, and should be sentenced to State Prison." The trial court's order revoked Martin's probation, sentencing him to five years state prison on count 1, and to ten years state prison on count 2, each count to run concurrently and with all credit for time previously served. This appeal followed.
The trial court found that the State did not establish that Martin possessed the loaded 9mm Ruger handgun found in the kitchen and owned by his aunt. --------
On direct appeal from the judgment and sentence regarding his violation of probation, Martin argues that: (1) there was insufficient evidence to establish Martin's possession of the weapons and contraband found in the November 2015 search; (2) the trial court lacked jurisdiction to modify Martin's original (2013) and 2014 sentences on January 23, 2015, precluding any violation of probation charged or found with respect to count 2 of those sentences; and (3) the trial court's preliminary announcement of anticipated findings in open court, but without Martin and his counsel present, nine days before the actual sentencing hearing, at which Martin and his attorney were present, was fundamental and reversible error.
A. Standards of Review
We review the determination of a violation of probation for an abuse of discretion. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002); Towns v. State, 259 So. 3d 291, 293 (Fla. 3d DCA 2018). "[T]he appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that [the defendant's] violation was both willful and substantial." Carter, 835 So. 2d at 262.
Martin's second argument regarding an alleged constitutional violation of double jeopardy regarding the modification of sentence on count 2 is reviewed de novo. Stanley v. State, 57 So. 3d 944, 949 (Fla. 4th DCA 2011). On this issue, however, the State contends that the correction of a scrivener's or clerical error in the original written sentence on count 2 does not present a constitutional issue, such that the error may be corrected at any time, nunc pro tunc to the original date of the judgment. Wells v. State 796 So. 2d 1276, 1277 (Fla. 4th DCA 2001) (recognizing that the Florida Supreme Court has effectively adopted Florida Rule of Civil Procedure 1.540(a) regarding the correction of clerical mistakes in judgments, decrees or other parts of the record, citing Luhrs v. State, 394 So. 2d 137, 139 n.1 (Fla. 5th DCA 1981)).
As to Martin's third argument regarding his constitutional right to be present (and for his attorney to be present) at his sentencing on the probation violations, Martin maintains that we should review the issue de novo, while the State argues that the violation alleged in the present case amounts to harmless error under any standard of review. Smithers v. State, 826 So. 2d 916, 927 (Fla. 2002); Thompson v. State, 208 So. 3d 1183, 1187 (Fla. 3d DCA 2017).
B. The Issues
We address Martin's first issue, the sufficiency of the evidence to support the trial court's revocation of probation for willful, substantial violations, with a predicate assumption that the 2015 orders clarifying Martin's original and 2014 sentences were lawful and effective (i.e., based on our rejection of Martin's second issue in his 2016 appeal). The trial court's carefully-reasoned, eleven-page order assessing the evidence and making those findings is fully consistent with the record of the evidentiary hearing. The State was only required to prove by a preponderance of the evidence that Martin committed the charged violations. Robertson v. State, 800 So. 2d 338, 339 (Fla. 3d DCA 2001).
Martin argues, in particular, that "[t]he State failed to prove that Martin had knowledge and dominion and control over the .22 caliber firearm, the sword, or the marijuana, or over the bedroom where the items were found." Martin relies on Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010), for the proposition that the searched premises were jointly, not exclusively possessed, such that Martin's knowledge or ability to maintain dominion and control over the contraband were not proven.
The record establishes, however, that Martin exercised control over the room where these prohibited items were found. He wore a key around his neck that unlocked the door to that room; and his wallet and his shirt, with the label "Creepa" identical to the tattoo on his chest, were found in that room. The testimony regarding joint occupancy of that room came from Martin's mother and her daughter, with no corroboration via their clothing or other personal items in the room. The record includes independent proof of constructive possession beyond mere proximity to the prohibited items. Towns v. State, 259 So. 3d 291, 294 (Fla. 3d DCA 2018) ("Independent proof may be established through the defendant's own statements, witness testimony or incriminating circumstances other than mere proximity to the contraband." (internal quotations and citation omitted)); Tucker v. State, 198 So. 3d 1011, 1014 (Fla. 2d DCA 2016) (same).
Martin's second issue presents two questions of law: (1) was the conceded omission in 2013 of the orally-pronounced and plea-colloquied probation term in the initial written sentencing order on count 2, followed by Martin's 2014 plea to a violation of probation, again only including probation as to count 1, a judicial act without jurisdiction as to the count 2 sentence; and (2) did the later imposition of a harsher sentence, after Martin had already begun serving his 2013 sentence, constitute a violation of double jeopardy? Martin answers each of these questions affirmatively, relying on Florida Rule of Criminal Procedure 3.800(b)(1) (30-day limitation for appeal of a sentence) and Engram v. State, 853 So. 2d 1123, 1124 (Fla. 5th DCA 2003) (modification increasing sentence after a defendant has already begun serving the original sentence violates double jeopardy).
We answer each of these questions in the negative. Regarding the error in the preparation of the written sentence on count 2 (omitting the agreed probation term), the written plea agreement, the oral pronouncement of sentence, and the plea colloquy transcript all establish that this was a clerical error rather than an agreed modification of the sentence. Under those circumstances and the authorities discussed in Wells, 796 So. 2d at 1277, the trial court's clarification orders in early 2015 merely conformed the judgment on each count to the plea agreement and original oral pronouncement. The trial court's corrective orders were nunc pro tunc to the 2013 and 2014 sentences, confirming the probation terms (18 months on each count, concurrent) that were accepted by Martin in his plea agreements and addressed in the colloquies and oral pronouncements.
These corrections of clerical errors did not implicate the "imposition of a harsher sentence" after Martin had already begun serving his original term, nor a violation of double jeopardy principles as in Engram, 853 So. 2d at 1124. Indeed, the corrections merely brought the written sentences on count 2 into conformance with the written plea agreement and the oral pronouncement in each instance. We reject Martin's arguments on this issue.
Nor are we persuaded by Martin's third issue, the fact that he and his counsel were not present when the trial judge mentioned (with Martin's family members present) some of the findings in her order anticipated to be issued a few days later at the sentencing hearing. Martin's right to be present at every critical stage of the proceedings is undeniable. Jackson v. State, 767 So. 2d 1156, 1159 (Fla. 2000); Fla. R. Crim. P. 3.180(a)(9).
But what matters in this case is that Martin and his counsel were present those few days later and were afforded an opportunity to make argument and present evidence relating to Martin's sentencing. Only after that did the trial court orally pronounce sentence and, the following day, issue the detailed written order on the violations of probation and sentences. These circumstances fall comfortably within the harmless error cases. See, e.g., Ault v. State, 53 So. 3d 175, 202 (Fla. 2010) (asserted errors of this kind under Rule 3.180 are subject to reversal only upon a showing of prejudice and if "fundamental fairness is thwarted" (citations omitted)). The transcript of the courtroom discussion of the status of Martin's case (a few days before the actual sentencing hearing) confirms that the trial court was describing tentative conclusions in broad strokes and trying to schedule a date for the sentencing, as Martin's private counsel at the time was from Tampa. We conclude that any error on this point was harmless and not a basis for reversal of Martin's conviction or sentence.
C. The Consolidated Cases
After the commencement of Martin's plenary appeal in 2016 (our Case No. 3D16-1539), Martin filed five post-conviction, pro se motions, and each was denied by the successor trial judge. Martin then filed pro se appeals from those orders, and we consolidated each of them with Case No. 3D16-1539. In Case No. 3D18-944, Martin sought to withdraw his plea. In Case No. 3D18-1625, Martin moved to dismiss his original criminal case for alleged fraud and perjury. In Case No. 3D18-1722, he moved for rehearing regarding his request for release on a supersedeas bond pending the disposition of his plenary appeal. In Case No. 3D18-1771, he moved for clarification of the trial court's basis for denial of his other pro se motions. And in Case No. 3D18-2282, Martin sought a writ of habeas corpus based on alleged fraud and perjury.
We have reviewed the briefs and petition in these pro se cases, as well as the records and appendices, and we find no error demonstrated.
In 2018, following the withdrawal of Martin's trial counsel and the identification of a conflict by the Office of the Public Defender (and that Office's motion for the appointment of conflict-free counsel), we relinquished jurisdiction to the trial court for the appointment of such counsel. Successor appellate counsel has, as already noted, diligently finalized the record, briefed the plenary appeal capably, and thoroughly presented Martin's arguments to this Court.
We now affirm the trial court's order finding Martin in willful and substantial violation of probation and imposing sentence accordingly. The conviction and judgment below are affirmed in all respects, as are the trial court orders in the five pro se post-conviction cases consolidated here with Martin's plenary appeal.