AUBREY ALVINCENT PIERCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aubrey Pierce appealed his probation revocation and resulting sentences. The Florida Second District Court of Appeal held that while the trial court properly found probation violations, it lacked authority to enter duplicate judgments of conviction on the revocation date, and therefore reversed the unauthorized judgments and remanded for entry of a proper revocation order and sentencing.
The trial court lacked authority to enter the duplicate judgments of conviction on October 11, 2013, which merely duplicated the judgments from July 23, 2012. Without a proper order of revocation of probation, the trial court had no authority to impose the prison sentences. The court must remand for entry of a proper revocation order and sentencing thereon.
[1] A trial court may not enter second judgments of conviction that duplicate prior judgments of conviction for the same offense.
[2] A trial court must enter an order of revocation of probation before sentencing a defendant to a term in prison following a probation violation.
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Join FLexlaw to unlock all legal intelligence“the court had no authority to enter second judgments of conviction on October 11, 2013, which duplicated the judgments of conviction entered on July 23, 2012”
Establishes the core holding that duplicate judgments are unauthorized.
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Join FLexlaw to unlock all legal intelligencePierce pleaded guilty to four felonies and a misdemeanor in July 2012 and received a 48-month probation sentence. In July 2013, the Department of Corr…
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Aubrey Pierce appeals what should be an order of revocation of probation and sentences entered on revocation. Although we conclude that there was a basis for the trial court to find that Mr. Pierce violated his probation and that the court *1208was authorized to revoke probation as a result of several violations, the court had no authority to enter second judgments of conviction on October 11, 2013, which duplicated the judgments of conviction entered on July 23, 2012. Without entering an order of revocation of probation, the trial court had no authority to sentence Mr. Pierce to a term in prison. Accordingly, we reverse the unauthorized judgments and the amended sentences imposed on those judgments. We remand for entry of a proper order of revocation and for sentencing on that order.
The facts in this case are not complex. Mr. Pierce was charged with four felonies and a misdemeanor in June 2012. He entered into a negotiated plea agreement under which he agreed to plead guilty in exchange for a forty-eight-month term of probation. On July 23, 2012, the trial court adjudicated him guilty for all five offenses, entered judgments of guilt as to the five offenses, and sentenced Mr. Pierce to concurrent terms of forty-eight months’ probation for the felonies and twelve months’ probation for the misdemeanor. An order of probation was entered on that same day.
Thereafter, in July 2013, the Department of Corrections filed an affidavit alleging nine violations of probation, including some relating to new substantive offenses. On October 11, 2013, the trial court conducted an evidentiary hearing on these allegations. After receiving testimony from four witnesses, the trial court found violations and pronounced sentence stating:
As such, having found you to be in violation of these terms and conditions; specifically, Condition 5 times three and Condition 6 times 2,1 revoke the probation, adjudicate you guilty of Counts I, II, III, IV, and V, sir. Count V, sentence you to time served; that’s the misdemeanor. Count I, sentence you to five years Florida state prison. Count II, sentence you to five years Florida state prison consecutive to the five on Count I. Count III, sentence you to five years’ probation, consecutive to the ten years prison. And Count IV, sentence you to an additional five years consecutive probation. So it’s ten prison followed by ten probation.1
The trial court did not enter an order revoking probation on these findings. Instead, it entered duplicate judgments on October 11, 2013.2 It then entered sentences in accordance with the oral pronouncement. Mr. Pierce appealed the judgments and sentences.
The error in this case is not new to the Thirteenth Judicial Circuit. In fairness to Judge Holder, it is likely that he is simply following procedures and using forms created by others.3 Eight years ago, we explained to the Thirteenth Judicial Circuit that we were “not aware of any rule or statute that expressly permitted] a circuit court to enter multiple judgments of con*1209viction for the same offense in one case” and we further explained problems with this practice. See Dawkins v. State, 936 So.2d 710, 712 (Fla. 2d DCA 2006). For nearly ten years, the supreme court has provided a standard form order of revocation of probation that the circuit courts are expected to use. See Fla. R. Crim. P. 3.995.
Over the years, we have repeatedly pointed out to the Thirteenth Judicial Circuit that it is using forms that are not in compliance 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 problem by the language used in the form it required the clerks of the circuit courts to utilize to commit a defendant to the Department’s custody. Id. at 66-67 (Altenbernd, J., concurring) (citing section 944.17(4), Florida Statutes (2010)). The Department appears to have responded to this concern by revising its form, the “Uniform Commitment to Custody of Department of Corrections.” That form, DC6-306 (Revised 5/3/11), now includes a sentence stating: “In addition to the Original Judgment, if judicial supervision has been revoked subsequent to the entry of the judgment adjudicating guilt, a certified copy of the order revoking supervision (rather than a duplicative judgment adjudicating guilt) is also attached in support of this commitment.” http://www.dc.flcjn. net/commitment.html.
Nevertheless, more than two years after the Department revised the form, the commitment document signed on October 11, 2013, on behalf of the Clerk of the Court for the Thirteenth Judicial Circuit, is not in accordance with the Department’s form. By omitting the required sentence and sending the impermissible duplicative judgment, the commitment papers convinced the Department to receive a prisoner whom the Department otherwise would have rejected for lack of an order of revocation.
Thus, we reverse the unauthorized judgments and sentences and remand for the trial court to enter a proper revocation order and sentences. We note that at the end of the revocation hearing the trial court orally pronounced violations of condition six as well as condition five. The affidavit does not appear to allege violations of condition six. However, it does allege numerous violations of condition five, and we recognize that those violations would be sufficient to support an order of revocation.
Affirmed in part, reversed in part, and remanded. .
KHOUZAM and MORRIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Butler v. State, 195 So. 3d 1147 (Fla. 2d DCA 2016)…ments in case numbers 2011CF-009406 and 2012CF-003342. Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings. See Pierce v. State, 150 So. 3d 1207, 1208-09 (Fla. 2d DCA 2014); Jackson v. State, [*1149] 56 So. 3d 65, 66 (Fla. 2d DCA 2011); Dawkins v. State, 936 So. 2d 710, 712 (Fla. 2d DCA 2006). [T]he circuit court must enter a judgment on a violation of probation “unless [the defendant] has…
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Oree Deandre West v. State, 232 So. 3d 522 (Fla. 2d DCA 2017)…e adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings.” Butler v. State, 195 So. 3d 1147, 1148 (Fla. 2d DCA 2016); see also Pierce v. State, 150 So. 3d 1207 (Fla. 2d DCA 2014). Thus, we reverse the unauthorized judgments. Affirmed in part, reversed in part, and remanded with directions. KELLY, SLEET, and LUCAS, JJ., Concur.…
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McCARRON v. State, 185 So. 3d 666 (Fla. 2d DCA 2016)…e, 845 So. 2d 250, 251 (Fla. 2d DCA 2003); Donley v. State, 557 So. 2d 943, 944-45 (Fla. 2d DCA 1990). . The entry of a duplicative,judgment of; conviction is impermissible for the reasons that this court has previously detailed in Pierce v. State, 150 So. 3d 1207, 1208-09 (Fla. 2d DCA 2014). .Apparently because the sentence previously imposed on Count 2 was an illegal sentence, ,the trial court did not impose any new sentence for the offense alleged in that count. . We do not address the issue of whether t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Terry v. Dep't OF Corr., 936 So. 2d 710 (Fla. 1st DCA 2006)
- Jackson v. State, 56 So. 3d 65 (Fla. 2d DCA 2011)
- Johnson v. State, 17 So. 3d 1290 (Fla. 2d DCA 2009)
- Badger v. State, 23 So. 3d 813 (Fla. 2d DCA 2009)
- Bush v. State, 135 So. 3d 1108 (Fla. 2d DCA 2013)
- Freeman-Jew v. State, 18 So. 3d 1254 (Fla. 2d DCA 2009)
- Kiburis v. State, 18 So. 3d 1254 (Fla. 2d DCA 2009)