DONOVAN L. PATTERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donovan Patterson appeals his sentence imposed after pleading no contest to drug and firearm possession charges. The trial court conditioned a sentence reduction on Patterson's appearance at sentencing and avoidance of new offenses, but imposed the original fifteen-year sentence after receiving an affidavit alleging Patterson committed new crimes while on release. The appeal was dismissed for lack of preservation.
The court affirmed the sentence because Patterson failed to preserve the issue for appeal by neither objecting to the affidavit at sentencing nor filing a motion to withdraw his plea, as required by the Florida Rules of Appellate Procedure. The affirmance was without prejudice to Patterson to raise the issue through a timely motion under Florida Rule of Criminal Procedure 3.850.
[1] A defendant's failure to object to the use of an affidavit at sentencing or file a motion to withdraw their plea waives the right to appeal the use of that affidavit to e…
[2] A sentence modification conditioned on the defendant not committing new offenses while on release may be revoked if the defendant allegedly commits a new infraction, even…
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Join FLexlaw to unlock all legal intelligence“If you show Up and have been picked up or arrested for anything new between now and [sentencing], I am not bound by this agreement. Do you understand?”
The trial judge's explicit warning to Patterson about the conditions of the sentence reduction agreement
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePatterson, incarcerated when he entered a negotiated no-contest plea to possession of a controlled substance with intent to sell and firearm possessio…
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Donovan L. Patterson appeals the sentence imposed following his plea to possession of a controlled substance with intent to sell or deliver, and possession of a firearm by a convicted felon.
Patterson was in jail when he agreed to enter a negotiated plea of no contest to both charges. The trial court initially sentenced Patterson to fifteen years and released him pending the final sentencing hearing. The trial court agreed to reduce his sentence to eight years upon remand to custody, on the condition that Patterson appear at sentencing and not commit.any new offenses while on release. If Patterson either failed to appear for sentencing or committed a new infraction, the court stipulated that it could impose any sentence up to the statutory máximums.1
To emphasize the point, the trial judge warned Patterson, “If you show Up and have been picked up or arrested for anything new between now and [sentencing], I am not bound by this agreement. Do you understand?” Patterson assured the court he did. The trial judge continued, “When — and I tell you this much: if, you ... don’t show up [for sentencing,] when they catch you, not only am I going to leave the .fifteen years on Count I, I will probably ¡give you a consecutive fifteen on [c]ount III. Do you understand?” Patterson again assured the court that he understood.
*915Patterson appeared at sentencing as directed, but the trial judge informed him that the court had received an affidavit from law enforcement alleging that Patterson had committed a new infraction.2 Patterson did not object to the affidavit or raise any issues at that time. ■ The trial judge did not reduce the sentence on the drug charge from fifteen to eight, years. Rather, he sentenced Patterson to concurrent fifteen-year sentences. on the drug and firearm charges with a three-year minimum mandatory sentence on the firearm charge.
Subsequently, Patterson filed a “Motion to Modify Sentence,” stating that he denied any knowledge of the events referenced in the affidavit, and that the State never filed charges against him for those events. That motion was summarily denied. Patterson appeals the use of an affidavit to establish the new violation of the law. He argues the affidavit did not amount to competent, substantial evidence that he failed to comply with his plea agreement. See Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008); Walker v. State, 599 So.2d 233, 234 (Fla. 3d DCA 1992).
Yet Patterson neither objected to the use of the affidavit at sentencing nor filed a motion to withdraw his plea. Because we find that this issue was not properly preserved for appeal, we cannot consider the merits. Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(d); see also Rackley v. State, 755 So.2d 833, 834-35 (Fla. 5th DCA 2000); Fisher v. State, 35 So.3d 143, 143-44 (Fla. 2d DCA 2010). However, our affir-mance is without prejudice to Patterson to raise the issue in a timely motion pursuant to Florida Rule of Criminal Procedure 3.850. . .
AFFIRMED.
PALMER and BERGER; JJ., concur.
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Citator
Cited By
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Chasen Allen OTT v. State, 260 So. 3d 1184 (Fla. 5th DCA 2018)…PER CURIAM. AFFIRMED. See Patterson v. State, 188 So. 3d 913, 915 (Fla. 5th DCA 2016) (finding defendant failed to preserve claim that trial court erred when it relied on affidavit to find he did not comply with plea agreement because he failed to make contemporaneous objection at sentencing hearing and did n…
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Chasen Allen Ott v. State (Fla. 5th DCA 2018)
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Zimzores v. State, 261 So. 3d 759 (Fla. 5th DCA 2019)
Authorities Cited
- THE Florida BAR v. Mullins, 527 So. 2d 1380 (Fla. 1988)
- Neeld v. State, 977 So. 2d 740 (Fla. 2d DCA 2008)
- Walker v. State, 599 So. 2d 233 (Fla. 3d DCA 1992)
- Fisher v. State, 35 So. 3d 143 (Fla. 2d DCA 2010)
- Rackley v. State, 755 So. 2d 833 (Fla. 5th DCA 2000)