MICHAEL JOSEPH NILIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2015-05-22
Nos. 1D15-0251/15-0498
THOMAS, MARSTILLER, and BILBREY, JJ., concur.
165 So. 3d 779 Florida District Court of Appeal, First District (2015) Positive Treatment
Cited by 2 cases

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Holding

The court held that the trial court erred in denying the appellant's September 2013 motion for post-conviction relief without addressing his claim regarding the April 2012 amended judgment and sentence. The court affirmed the denial of the February 2014 motion.


Headnotes

[1] A trial court must address a specific claim that a defendant is entitled to probationary sentence termination pursuant to an amended judgment and sentence, even if simila…

[2] A trial court's order directing the clerk to prepare amended judgments and sentences to reflect an agreement for early probation termination must be addressed when a defe…

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Facts & Procedural History

The appellant pleaded guilty and received sentences including probation, with an amended judgment stating probation would terminate early upon full pa…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This opinion addresses two cases which have been consolidated for purposes of travel and disposition. The consolidated cases involve the appeal of the denial of two postconviction motions, one filed in September of 2013 (case 15-0498), and one filed in February of 2014 (case 15-0251), both of which raise the same issue. We reverse and remand the denial of the appellant’s September 2013 motion for post-conviction relief. Because the February 2014 motion raises the same claim,1 which is to be addressed on remand, we affirm the summary denial of the February 2014 motion.

In November of 2010, the appellant entered a plea of guilty to numerous counts in eight cases in exchange for concurrent sentences of 5 years’ imprisonment on the third degree felonies, and 8 years’ imprisonment, to be followed by 5 years on probation for the second degree felonies. The appellant then filed a number of postcon-viction motions. In an order rendered on April 17, 2012, the trial court denied all pending motions. However, that order also found that the appellant’s probation *780“would be terminated early upon payment in full of all costs, fees and restitution.” The order directed the clerk of the lower court to “ensure that Amended Judgments and Sentences are prepared to accurately reflect the agreement.” The same day the order was entered, an amended written judgment and sentence appears to have been filed. That judgment and sentence, which was entered nunc pro tunc to the November 2010 judgment and sentence, states:

In imposing the above sentence, the Court further orders the defendant’s probation will terminate early wpon payment in full of all costs, fees and restitution and that the defendant further authorized his attorney accept this agreement, waiving his appearance, which was done in open court ... and agreed upon by the State and the Court.

(bold emphasis added, underline emphasis in the original).

In September of 2013, the appellant filed a motion for postconviction relief alleging that he attempted to submit payment in full for all court costs, fines and restitution, but the court refused payment. The appellant therefore alleged that he was entitled to have all his probationary periods terminated. The trial court denied the motion without explanation. On appeal, this Court reversed and remanded for the attachment of records refuting appellant’s claim or an evidentiary hearing. See Nilio v. State, 143 So.3d 424 (Fla. 1st DCA 2014). In response to this Court’s mandate, the lower court denied the appellant’s motion again. That order included attachments indicating that there was no plea term or agreement that the appellant’s probation would automatically terminate. Instead, the court found that the early termination of probation was discretionary. Specifically, the court cited the trial court’s oral pronouncement at the November 2010 sentencing that probation may terminate early without any further contact with the court upon the payment of all costs, fees and restitution. The trial court also attached a portion of a hearing held in July of 2011 on a previous postconviction motion, during which counsel for the appellant and the trial court allegedly agreed that there was no “automatic” termination provision.

In February of 2014 (case 15-0251 on appeal), the appellant filed another post-conviction motion alleging that the written judgment and sentence entered on April 17, 2012, nunc pro tunc to November 2010, does not comport with the oral pronouncement because it does not state that probation will end “without further contact with the court.” The appellant also alleged that some of his convictions are duplicative and thus violate double jeopardy. The trial court denied the motion, holding that the issue had already been raised and denied multiple times.

In both motions, the appellant asserts that his judgment and sentence called for the probationary sentences to end automatically upon the payment of all restitution, costs and fees. The trial court has repeatedly denied this claim by citing to the transcript of the original November 2010 plea hearing, which indicates that the court “may” terminate probation early upon the payment of all fees. However, the appellant asserts that the November 2010 judgment and sentence is no longer operative, as an amended judgment was entered in April of 2012, which specifically stated that probation “will” terminate early upon the payment in full of appellant’s monetary obligations. The trial court has never addressed the appellant’s specific claim that he is entitled to have his probationary sentences terminated pursuant to the 2012 judgment and sentence. Accordingly, in case 15-0498, we reverse and remand for the trial court to attach portions of the record refuting the appellant’s *781claim that he is entitled to have his probationary periods terminated pursuant to the April 2012 judgment and sentence,' or to hold an evidentiary hearing.2 We affirm the denial of the appellant’s motion filed in February 2014.

AFFIRMED in part, REVERSED and REMANDED in part for further proceedings.

THOMAS, MARSTILLER, and BILBREY, JJ., concur.


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Citator

Cited By

  • Nilio v. State, 176 So. 3d 1286 (Fla. 1st DCA 2015)
    …Joseph Nilio appeals the circuit court’s denial of his petition for writ of habeas corpus, by order entered March 4, 2015.1 In light of Appellant’s numerous pro se filings in this court, and noting this court’s opinion and remand in Nilio v. State, 165 So. 3d 779 (Fla. 1st DCA 2015) for post-conviction proceedings, on September 29, 2015, this court issued an order for Appellant to show cause why the order on appeal here should not be summarily affirmed. Fla. R. App. P. 9.315, 9.410. Appellant timely respon…

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