Opinion
Nos. 1D21-1465 1D21-1467
08-10-2022
James Donald WOODWARD, Appellant, v. STATE of Florida, Appellee.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellant.
Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
James Woodward appeals a consolidated order revoking his probation in Duval County Court case numbers 19-CT-15319 and 19-CT-19807. We affirm the order on appeal because competent, substantial evidence supports more than one ground for revocation in each case and the record reflects probation would have been revoked on these grounds alone. See Smith v. State , 329 So. 3d 256, 257 (Fla. 1st DCA 2021). However, grounds (8) and (10) in case number 19-CT-15319 and ground (9) in case number 19-CT-19807 each required a monetary component. The trial court made no determination regarding Mr. Woodward's ability to pay; therefore, the findings that Mr. Woodward willfully violated these conditions must be stricken. See id. We affirm the decision to revoke probation, but remand for correction of the revocation order.
AFFIRMED and REMANDED .
Roberts and Makar, JJ., concur; Tanenbaum, J., concurs in part and dissents in part with opinion.
Tanenbaum, J., concurring in part and dissenting in part.
The order on review revokes probation in two criminal cases. It does so based on findings that the defendant violated multiple conditions: seven in one of the cases, and three in the other. Under the circumstances (the defendant has violated probation before), the trial court had the authority to revoke for even one violation. See § 948.06(2)(e), (f)1.d, Fla. Stat.; State v. Carter , 835 So. 2d 259, 261 (Fla. 2002). Most of the violations had nothing to do with the defendant's ability to pay, and the findings behind those violations are not challenged on appeal. Even if they were, there is sufficient evidence to support them.
A revocation proceeding is not a criminal prosecution. Peters v. State , 984 So. 2d 1227, 1229 (Fla. 2008). Individual findings of violation are not convictions. "Because a probationer has already been found guilty of the crime charged before being placed on probation or under community supervision, the revocation proceeding implicates only a limited, conditional liberty interest rather than the absolute liberty interest enjoyed by a criminal defendant prior to trial." Id. at 1233. The only process due to the probationer is "an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." Morrissey v. Brewer , 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; see also Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (observing that there is no difference between the process due in a parole revocation hearing and in a probation revocation hearing).
There is no doubt the defendant received the appropriate level of process before his probation was revoked and he was sent to prison. There was a hearing that he attended. Evidence was presented to support several non-financial violations. This means his revocation and incarceration were not based solely on his inability to pay. Cf. Stephens v. State , 630 So. 2d 1090, 1091 (Fla. 1994) ("We agree and hold that, before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so." (emphasis supplied)). There is nothing procedurally or legally infirm about the trial court's decision to revoke. Indeed, the panel affirms for this reason, and I concur.
Oddly enough, though, the majority does not stop there. It also instructs the trial court to edit the revocation order by striking a few findings. Mind you, this suggestion for elision does not benefit the defendant at all. This proposed "improvement" upon the original revocation order will have no effect on the defendant's sentence. He will get a piece of paper in prison titled "amended order of revocation" that will have three fewer enumerated violations, but he will be serving the same amount of time. In addition to this exercise being a waste of judicial resources, it could prove confusing to the defendant, who will be left wondering: "My lawyer won, so why didn't I?"
At all events, we have no authority to instruct on these edits. We are neither scriveners nor editors. Our job is to correct prejudicial errors. See § 924.051(3), (7), Fla. Stat. That is, we review an order to determine whether it was the product of some error that was harmful, such that it is of dubious legal validity. When we affirm an order, like we do in this appeal, we are saying that it is legally correct and beyond legal reproach. Once we do that, though, we have discharged our duty. There is no source of authority for our remanding a case with an instruction to the trial court to nevertheless correct "errors" that make no difference. I know this court has engaged in this perplexing practice in the past, which presumably is the reason the majority does so here. Still, practice is not "precedent." There is no utility in the remand and no authority behind it, so on that part of the disposition, I dissent.