Ronald SEARCY, Appellant, v. The STATE of Florida, Appellee.
No. 3D06-277.
District Court of Appeal of Florida, Third District.
January 9, 2008.
971 So. 2d 1008
Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
Before GREEN, RAMIREZ, and SUAREZ, JJ.
SUAREZ, J.
The defendant appeals from a final judgment of conviction and fifteen-year sentence that resulted from a plea agreement, as well as the trial court‘s orders denying his Motion to Withdraw Plea and his Motion to Correct an Illegal Sentence. He also appeals his conviction and six-month sentence for direct criminal contempt. We affirm in part and reverse in part.
On November 14, 2005, the defendant, represented by counsel, pursuant to a negotiated plea, entered a guilty plea to tampering with evidence, resisting an officer with violence, and fleeing or attempting to elude a police officer. The State offered 364 days in jail with the Treatment Alternatives to Street Crime (TASC), a drug treatment program. During plea negotiations, the defendant requested a thirty-day furlough from the court. The trial court granted the furlough, provided that the
The defendant timely surrendered in court following the furlough and had no new cases. At that appearance, he asked the judge to rule on his pending pro se motion to withdraw his plea. The trial court summarily denied the motion. The defendant then refused to submit to the urinalysis and engaged in a verbal argument with the trial judge that resulted in the court ordering him three times to show cause as to why he should not be held in contempt. The defendant failed to show cause and continued to engage in disrespectful and disruptive behavior. The court held him in direct criminal contempt and sentenced him to six months in prison, to run consecutive to the unmitigated fifteen-year sentence. The defendant filed a pro se notice of appeal with this Court, and subsequently, a pro se Motion to Correct an Illegal Sentence with the trial court, pursuant to
The first issue is whether the defendant was represented by counsel at the time he filed his pro se Motion to Withdraw Plea. The record indicates that he was not.
We agree with the defendant that he should have been entitled to conflict-free representation on his pro se Motion to Withdraw Plea filed pursuant to
Next, we consider whether the defendant was entitled to representation by counsel at his court appearance on December 14, 2006, when, in accordance with the plea agreement, he reported to court solely for the purpose of surrendering and commencing his sentence after furlough. The defendant argues that his December 14, 2006, court appearance constituted a sentencing hearing and, thus, a critical stage of the criminal proceedings. Although we acknowledge that criminal defendants facing incarceration have a right to counsel at critical stages of their proceedings, including sentencing, we disagree that the defendant‘s appearance to turn himself in on December 14, 2006, was a sentencing hearing. The defendant had been properly sentenced one month earlier, on November 14, 2006. At that time the defendant, represented by counsel, entered his plea pursuant to a proper plea colloquy, the court pronounced sentence, and gave the defendant a one-month conditional furlough. The purpose of the defendant‘s appearance in court at the end of his furlough was merely to report to the Department of Corrections to begin his sentence, and it was not a critical stage of his criminal proceedings requiring representation of counsel.
Finally, we find that the trial court did not abuse its discretion in retaining the negotiated fifteen-year sentence in light of the defendant‘s refusal to submit to the urinalysis test, one of the conditions of receiving the mitigated sentence. This Court and others have reversed sentences imposed in lieu of mitigated sentences only where the defendants’ violations of their furlough terms were de minimis or involuntary. See Navedo v. State, 847 So.2d 585 (Fla. 3d DCA 2003) (finding violation de minimis where the defendant overslept and appeared six hours late); Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001) (finding violation de minimis and involuntary where defendant was fifteen minutes late); Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995) (finding delay de minimis where defendant reported six-and-one-half
The defendant also filed a Motion to Correct Illegal Sentence pursuant to
The defendant also argues that the trial court erred by holding him in direct criminal contempt without affording him the opportunity to present evidence, in violation of
THE COURT: Mr. Searcy, let me tell you two things. You either submit to the urinalysis or I am going to do an order to withdraw your blood. I believe you are under the influence and if you refuse to stop talking; you don‘t stop talking, I am going to hold you in contempt. If you don‘t submit to the urinalysis, then you are going to get the original sentence that we sentenced you to.
DEFENDANT: Then give it to me and I will appeal it to the 3rd DCA. I am tired of your threats.
THE COURT: Excuse me? Stop right there. You can help yourself of the contemptual [sic] behavior you just exhibited by apologizing or I am going to give you six more months. Tell me why I should not give you six more months.
DEFENDANT: It‘s your call, your Honor. I just want a right to appeal.
THE COURT: I am giving you the opportunity. Tell me why you should not be held in contempt.
DEFENDANT: You know why. You know what you have done to me.
THE COURT: All I want you to tell me is why I should not give you six more months for your contemptuous behavior, raising your voice to this Court and turning your back on the Court and refusing to —
DEFENDANT: Because there is no integrity in your courtroom.
THE COURT: In that case, I am going to hold you in contempt and sentence you to six months consecutive. . . .
A charge of direct criminal contempt presents an exceptional situation as the charging court is afforded significant
Merely asking the defendant if he wishes to explain his behavior does not meet the procedural requirement that he be given an opportunity to present evidence. O‘Neal v. State, 501 So.2d 98, 100 (Fla. 1st DCA 1987). In Garrett, the court found that the procedural requirements were not met where the defendant was neither informed that he could present mitigating or excusing circumstances, nor given a separate and distinct opportunity to present mitigating circumstances. “Under these circumstances we cannot conclude that the brief response of appellant substantially reflected what appellant would have presented if he had been given the opportunity contemplated by the rule.” Garrett, 876 So.2d at 25
In the instant case, the trial judge asked the defendant to show cause why he should not be held in contempt and even said, “I am giving you an opportunity.” But this is not enough as the court failed to advise him that he had the opportunity to present evidence of mitigating or excusing circumstances and failed to provide him with a reasonable opportunity to do so. Given the heat of the moment and the apparent agitation of the defendant, we believe that a better approach may have been to advise the defendant of the contempt charge, ask him to show cause, advise him of his opportunity to present mitigating or excusing circumstances, and then permit him a short, cooling-off period in which to gather his thoughts in order to present a proper defense of his actions. Therefore, we reverse the contempt adjudication without prejudice to the trial court to institute proper contempt proceedings. See Telfair v. State, 903 So.2d 257 (Fla. 1st DCA 2005) (finding that the trial court failed to afford appellant the opportunity to show cause why he should not be held in contempt before finding appellant in contempt, and failed to afford appellant the opportunity to present evidence of excusing or mitigating circumstances, as Rule 3.830 requires).
Affirmed in part, reversed and remanded in part.
GREEN, J., concurs.
RAMIREZ, J. (concurring in part, dissenting in part).
I concur with the majority in its reversal of Searcy‘s conviction and sentence for
In my view, it defies logic to categorize Searcy‘s court appearance on December 14, 2006, as anything but a critical stage in his criminal proceeding. The law is clear that sentencing is a critical stage. See Sandoval v. State, 884 So.2d 214, 215 (Fla. 2d DCA 2004); Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999); Smith v. State, 590 So.2d 1078 (Fla. 2d DCA 1991) (“An indigent defendant has the right to the assistance of counsel at every critical stage of the proceedings against him, including sentencing.“). The majority seeks to circumvent this deeply enshrined constitutional right to counsel by engaging in what I view as a legal fiction — that Searcy was sentenced on November 14, 2006, not on December 14, 2006.
I agree that if Searcy had merely turned himself in at the appointed hour without incident and his sentence had been mitigated as agreed, that the event could be viewed as non-critical. As the majority opinion makes clear, however, what occurred on December 14, 2006, was far from uneventful. It resulted in a fourteen-year increase in Searcy‘s term of incarceration.
Searcy was charged by information with three third-degree felonies, all alleged to have occurred on October 20, 2004: (1) tampering with or fabricating physical evidence; (2) resisting an officer with violence; and (3) fleeing or attempting to elude a police officer. Searcy went through several defense attorneys, starting with the Office of the Public Defender. On April 18, 2005, the trial court appointed attorney Emilia Diaz Fox as his counsel, after the Public Defender certified a conflict. On April 29, 2005, there was an oral motion to withdraw, with a notation of “reserve ruling.” On May 4, 2005, new counsel, Anthony Sanchez, made his appearance in the case. Although the record does not show the reason why, on August 9, 2005, Searcy‘s bond was revoked, and he was incarcerated until his plea was entered on November 14, 2005.
On that date, Sanchez announced the State‘s plea offer of “adjudication, 364/TASC.” Searcy then requested that the trial court reconsider reinstating his bond, which was denied. Searcy next complained that he had been incarcerated for over 100 days and counsel “hasn‘t come and talked to me about anything.” He requested to be co-counsel at trial, which was also summarily denied. When the court inquired if he was getting along with Sanchez, Searcy stated that he was not. The court then stated, “I‘m letting Mr. Sanchez out of your case but not until I find a new attorney.”
At that point, Searcy requested to speak with Sanchez. After explaining the plea and that Searcy was facing 51.3 months under the guidelines, with a maximum of fifteen years in prison, the court gave Searcy time to speak with Sanchez. When the case was recalled, Searcy requested a thirty-day furlough. The trial court agreed to grant it if Searcy would “plead to the 15-year maximum today and when you return in 30 days and you have a clean urine and you have picked up no new cases for which I find probable cause and you show up on time, then I will mitigate your sentence to the 364/TASC sentence.” Searcy assented.
In Parks v. State, 782 So.2d 968 (Fla. 3d DCA 2001), we vacated the sentence imposed upon the defendant‘s alleged failure to comply with a previous plea agreement and remanded for further proceedings to be conducted after the appointment of conflict-free
For the foregoing reasons, I would reverse and remand for further proceedings before a different judge, where Searcy would be represented by conflict-free counsel. If the new judge denies Searcy‘s motion to withdraw his plea, as the majority has ordered, the judge could still sentence Searcy to fifteen years, if he or she determines that the fifteen-year sentence is appropriate.