JOSEPH BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2013-09-18
No. 2D11-2531
BLACK, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.
135 So. 3d 1108 Florida District Court of Appeal, Second District (2013) Positive Treatment
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Joseph Bush appealed probation revocation judgments and sentences from two cases, but the appeal was dismissed as moot because he had fully served his sentences before the appeal could be decided. The court used the opinion to highlight systemic problems with non-standard probation revocation forms used in Pasco County that deviate from Florida Supreme Court-approved forms and create multiple judgments of guilt.


Holding

The appeal is dismissed as moot because Bush had fully served his sentences through jail credit and gain time before the appellate decision. However, the court identified and addressed significant problems with the trial court's use of non-standard probation revocation forms that deviate from Florida Rules of Criminal Procedure requirements, noting these forms create multiple judgments of guilt and fail to actually revoke probation.


Headnotes

[1] An appeal from a criminal sentence is moot when the appellant has fully served the sentence.

[2] A defendant's completion of a sentence while an appeal is pending may render the appeal moot, precluding meaningful relief.

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Key Quotes

“a violation of probation concerning a defendant who has already been adjudicated guilty should not be resolved by the entry of another judgment of guilt”

Establishes the core problem with the trial court's form: it improperly creates multiple judgments of guilt in probation violation proceedings.

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Facts & Procedural History

In 2009, Joseph Bush was on probation in two cases when affidavits of violation were filed in each. Following an evidentiary hearing in April 2011, th…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Joseph Bush appeals “judgments” and sentences that were entered on revocations of his probation in two cases. We dismiss *1109this appeal as moot because Mr. Bush has fully served his sentences. We write to discuss the difficulty of providing meaningful relief in appeals from short sentences and to identify a significant problem with the standard forms that were used to revoke probation in these two cases from Pasco County.

In 2009, Mr. Bush was on probation in case numbers 04-00131-CFAWS and 05-00577-CFAWS when an affidavit of violation was filed in each case. Following an evidentiary hearing in April 2011, the trial court found that Mr. Bush had violated the conditions of his probation and sentenced him to concurrent terms of five years’ imprisonment. Mr. Bush then filed this appeal.

The State properly and candidly conceded error on one issue raised by Mr. Bush with respect to case number 05-00577-CFAWS, which could have resulted in a reversal and remand for reinstatement of Mr. Bush’s probation in that case. However, in January 2013, while this appeal was pending, Mr. Bush was released from custody by the Department of Corrections. This primarily occurred because Mr. Bush had more than one thousand days of jail credit when the sentences were imposed. Thus, with jail credit and gain time, he had fully served his sentences in both cases before the end of January 2013. As a result, this court suspected that it could afford no meaningful relief to Mr. Bush.

This court ordered Mr. Bush’s counsel, Richard J. Sanders, to respond as to whether the issues raised in this appeal had become moot. Mr. Sanders is an experienced and respected assistant public defender who admitted that the case was moot. In his response, he commented that, from his twenty-nine years of experience, this problem was not uncommon. As he explained, an appellant with a short “net” sentence can rarely perfect an appeal of a sentencing issue before the sentence has been fully served. Mr. Sanders recognized that a solution to this problem would require some type of expedited proceeding that may be difficult to implement.

Although it is true that such a solution might be difficult to implement, it may be that the State and the defendant could occasionally stipulate to an immediate relinquishment to the trial court to correct such errors. Given that defendants should be entitled to more than mere procedural due process in appeals of sentencing issues, this court would be open to any method that the State and the public defenders might devise to address such sentencing errors, so long as it does not significantly delay the disposition of other cases.

We now turn to the significant problem in the standard forms that were used by the trial court. In both of these cases, the trial court used a form judgment that may be unique to Pasco County. The form deviates from the supreme court’s approved forms in Florida Rules of Criminal Procedure 3.986(b), 3.986(d), and 3.995. The form judgment has a location where it can be checked for use at a hearing on a violation of probation or community control, a retrial, or a resentencing. Below the standard section in which the defendant is either adjudicated guilty or has guilt withheld, the form has an additional line that states: “_The Court finds that the defendant violated all the conditions alleged in the affidavit, a copy of which is attached.”1 This is the box that was checked on both of the judgments on appeal. The trial court never entered an *1110order of revocation similar to the form appearing in rule 3.995.2

This form, especially as used in this case, creates several problems. First, it causes multiple judgments of guilt to be entered in a single ease. This court has previously explained that a violation of probation concerning a defendant who has already been adjudicated guilty should not be resolved by the entry of another judgment of guilt. See Johnson v. State, 17 So.3d 1290 (Fla. 2d DCA 2009).

Second, the language of the order merely finds that the “defendant violated all of the conditions alleged in the affidavit.” Putting aside the problem a trial court would have using this form in a case like this one where at least one violation was not proven, this language does not actually revoke probation. Obviously, it is common for defendants to be found in violation of probation and not have their probation revoked.3 If the trial court had revoked probation on the record in open court, we would be less concerned in this case. But the record reflects that the trial court only found violations of probation; the court never actually revoked Mr. Bush’s probation. In the absence of written revocation orders, the trial court had no authority to enter new sentences of imprisonment. See Dawkins v. State, 936 So.2d 710, 712 (Fla. 2d DCA 2006).

On return of this record to the trial court, we would encourage the trial court to examine carefully the forms that are currently in use to address both violations of probation that do not result in revocation and those that do.

Appeal dismissed as moot.

On Motion for Rehearing

The appellant’s attorney has filed a motion for rehearing explaining that his concession that the appeal was moot overlooked some possible collateral consequences. If Mr. Bush was unlawfully incarcerated as a result of an improper revocation of probation, then it is at least arguable that he can avoid liability for certain incarceration costs and other correctional costs.4 The State concedes that the rehearing has merit. Accordingly, we reinstate this appeal.

Although the State properly concedes reversible error in the revocation of Mr. Bush’s probation in case number 05-00577-CFAWS, it does not concede error in the revocation of Mr. Bush’s probation *1111in case number 04-00131-CFAWS. Competent, substantial evidence established a willful and substantial violation of probation in case number 04-00131-CFAWS, and the trial court did not abuse its discretion in revoking Mr. Bush’s probation and in sentencing him to five years’ imprisonment in that case. Furthermore, despite the procedural incongruities mentioned in our original opinion, we have not found reversible error as to the revocation of probation in that case. We thus affirm the revocation of Mr. Bush’s probation and the resulting sentence of five years’ imprisonment in case number 04-00131-CFAWS. However, in light of the possibility that the costs of incarceration or other collateral consequences might be slightly different for these two cases, we reverse the order of revocation and the resulting sentence in case number 05-00577-CFAWS. On remand, the trial court shall reinstate the order of probation in case number 05-00577-CFAWS, which has now been fully served.

Affirmed in part, reversed in part, and remanded.

BLACK, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

Other

On Motion for Rehearing

The appellant’s attorney has filed a motion for rehearing explaining that his concession that the appeal was moot overlooked some possible collateral consequences. If Mr. Bush was unlawfully incarcerated as a result of an improper revocation of probation, then it is at least arguable that he can avoid liability for certain incarceration costs and other correctional costs.4 The State concedes that the rehearing has merit. Accordingly, we reinstate this appeal.

Although the State properly concedes reversible error in the revocation of Mr. Bush’s probation in case number 05-00577-CFAWS, it does not concede error in the revocation of Mr. Bush’s probation in case number 04-00131-CFAWS. Competent, substantial evidence established a willful and substantial violation of probation in case number 04-00131-CFAWS, and the trial court did not abuse its discretion in revoking Mr. Bush’s probation and in sentencing him to five years’ imprisonment in that case. Furthermore, despite the procedural incongruities mentioned in our original opinion, we have not found reversible error as to the revocation of probation in that case. We thus affirm the revocation of Mr. Bush’s probation and the resulting sentence of five years’ imprisonment in case number 04-00131-CFAWS. However, in light of the possibility that the costs of incarceration or other collateral consequences might be slightly different for these two cases, we reverse the order of revocation and the resulting sentence in case number 05-00577-CFAWS. On remand, the trial court shall reinstate the order of probation in case number 05-00577-CFAWS, which has now been fully served.

Affirmed in part, reversed in part, and remanded.

BLACK, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur. . To the extent that our original opinion suggests that a case might become moot merely because a defendant has fully served his or her sentence, we acknowledge that this would not be correct in all cases.


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Citator

Cited By

  • Pierce v. State, 150 So. 3d 1207 (Fla. 2d DCA 2014)
    …iance with the rules of procedure. See Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009); Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009). We have made this observation in cases arising from at least one other circuit as well. See Bush v. State, 135 So. 3d 1108 (Fla. 2d DCA 2013); Kiburis v. State, 18 So. 3d 1254 (Fla. 2d DCA 2009). In Jackson v. State, 56 So. 3d 65 (Fla. 2d DCA 2011), the author of this opinion pointed out in a concurrence that the Department of Corrections was contributing to this probl…
  • Royan L. Hugan v. State, 190 So. 3d 210 (Fla. 2d DCA 2016)
    …entence and been released from county jail, we decline to dismiss this appeal as moot sinqe there may be significant collateral consequences stemming from the unlawful revocation of his community control and adjudication of guilt. See Bush v. State, 135 So. 3d 1108, 1110-11 (Fla. 2d DCA 2013) (on motion for rehearing). Accordingly, we reverse the- order revoking Hugan’s community control and the subsequent jail sentence. Because Hugan has already served a sentence in excess of his original twelve-month sentenc…
  • Wilson v. State, 268 So. 3d 820 (Fla. 2d DCA 2019)
    …this appeal (indeed, long before even the initial brief was filed), Wilson completed the thirteen-month prison sentence imposed upon revocation, and we ordered him to show cause why the appeal should not be dismissed as moot. See Bush v. State, 135 So. 3d 1108, 1110 (Fla. 2d DCA 2013) (on reh'g) (explaining that the appeal of a probation revocation may not be moot upon the defendant's completion of his sentence on revocation if the defendant faces collateral consequences stemming from the revocation it…

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