MARCUS TERRELL JOHNSON

v.

STATE OF FLORIDA

Before: TRAWICK, WALSH and SANTOVENIA. PER CURIAM. Filing # 117317188 E-Filed 11/28/2020 06:46:04 Johnson to “stay away from…El Charrito Supermarket, 708 SW 6th Avenue, Homestead, FL 33030.” The SAO’s were indefinite with no date of termination.

[*3] Page 3 of 11 On November 5, 2019, the State Attorney filed two “Suggestions and Petitions for Rule to Show Cause” alerting the court that Mr. Johnson had been arrested at the supermarket prohibited by the stay away. The trial court issued two rules to show cause as to why Mr. Johnson should not be held in contempt and summoned him for a hearing. Mr. Johnson moved to dismiss the contempt charges, arguing that the trial court had no authority to issue freestanding sentencing orders to stay away from the supermarket, and therefore, could not hold Mr. Johnson in contempt for violating those orders. The trial court denied the motions and allowed Mr. Johnson to preserve this issue on appeal and plead to violating the SAO’s in exchange for credit time served. This appeal followed. Analysis The Defendant argues that the sentencing order imposed upon him was illegal because the trial court lacked the power to issue “freestanding” stay-away orders. We review de novo a claim that a sentence is illegal. Burks v. State, 283 So. 3d 864 (Fla. 3d DCA 2019). A de novo standard of review also applies to a determination whether the trial court had subject matter jurisdiction over this contempt proceeding. Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019).

A judge’s right to impose sentence is not unfettered; it is constrained by law. “In Florida, the plenary power to prescribe the punishment for criminal offenses lies [*4] Page 4 of 11 with the legislature, not the courts.” Woods v. State, 740 So. 2d 20 (Fla. 1st DCA 1999). If a sentencing order does not comport with Florida law, the resulting sentence is illegal. Courts have stricken sentencing orders made without authority or in conflict with state law. For example, in Pridgen v. City of Auburndale, 430 So. 2d 967 (Fla. 2d DCA 1983), a defendant convicted of violating a municipal ordinance was placed on a 6-month term of probation. Because Chapter 948, the probation statute, only authorizes probation for a criminal violation of state law and not local law, the court found that the term of probation was illegal. Likewise, in State v. Muoio, 438 So. 2d 160 (Fla. 2d DCA 1983), the appellate court struck down an order permitting a defendant convicted of DUI to perform community service in lieu of paying a mandatory fine. Courts will strike down an illegal sentence even where a defendant pleads guilty to the illegal provision. In State v. Coban, 520 So. 2d 40 (Fla. 1988), a Defendant indicted for first-degree murder pled to an illegal sentence of life in prison without parole, in exchange for waiver of the death penalty. Even though that defendant pled to avoid the risk of the imposition of the death penalty, the court struck the illegal sentence. The court concluded that the only statutory sentences for first-degree murder were death or life with a [*5] Page 5 of 11 25-year parole restriction, and the resulting sentence without the parole restriction was therefore illegal. The court further admonished, “[t]he plenary power of the legislature to prescribe punishment for criminal offenses cannot be abrogated by the courts in the guise of fashioning an equitable sentence outside the statutory provisions.” Id. at 41.

Turning to Mr. Johnson’s underlying misdemeanor convictions, the crime of trespass charged under section 810.09, Florida Statutes is a firstdegree misdemeanor. First-degree misdemeanors are punishable as provided in sections 775.082(4) or 775.083, Florida Statutes (2019). Section 775.082(4) provides: (4) A person who has been convicted of a designated misdemeanor may be sentenced as follows: (a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding one year; * * * Section 775.083, Florida Statutes (2017) addresses fines. A person convicted of a misdemeanor “may be sentenced to pay a fine” which “shall not exceed” $1,000 when convicted of a first-degree misdemeanor. In lieu of or in addition to a sentence of incarceration or a fine, a trial judge may also place a person convicted of a misdemeanor on probation. § 948.01(2), Fla. Stat. (2018) (“if the defendant is found guilty of a nonfelony offense as the result of a trial or entry of a plea of guilty or nolo contendere, regardless of whether [*6] Page 6 of 11 adjudication is withheld, the court may place the defendant on probation”). The trial court may, alternatively, place a person found guilty of a misdemeanor on a split sentence where part or all of the term of incarceration is suspended while the defendant completes a probationary term. § 948.012(1), Fla. Stat. (2018). Beyond incarceration and probation, other statutory provisions address the court’s authority to impose alternative sentencing orders. For example, section 775.089, Florida Statutes requires that the judge make an order of restitution if the offender’s crime caused damage to a victim. Section 775.13, Florida Statutes obligates judges to order offenders to comply with registration requirements for certain sexual offenses. Section 775.091, Florida Statutes permits that, “[i]n addition to any punishment, the court may order the defendant to perform a specified public service.” Section 921.187, Florida Statutes adopts many of these unique statutory provisions, and in addition, allows that for any drug-related offense in violation of Chapter 893, the trial judge may impose drug treatment for the offender. §921.187(k), Fla. Stat. (2018). Finally, as a catchall, a trial court imposing sentence under section 775.082 does not forfeit other options available at law. Section 775.082(7), Florida Statutes (2018) states: [*7] Page 7 of 11 (7) This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence.

With respect to freestanding orders to “stay away” from a person or place, section 784.048, Florida Statutes permits a trial judge to impose a freestanding stay-away order as part of the sentence imposed on a charge of stalking. Thus, the legislature is aware of how to codify judicial authority to issue a stay away order at sentencing. See, e.g., Cason v. Fla. Dep't of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) (“[W]e have pointed to language in other statutes to show that the [l]egislature ‘knows how to’ accomplish what it has omitted in the statute in question.”). In reviewing all statutes pertaining to sentencing for a first-degree misdemeanor, there is no statutory provision which would entitle a judge to impose a freestanding “stay away order” as part of a sentence on a charge of trespass. An order imposed absent legislative or other authority is void. See, e.g., State ex rel. Saunders v. Boyer, 166 So. 2d 694 (Fla. 2d DCA 1964) (granting habeas corpus to contemnor who violated void sentencing order to “one year at hard labor in the county jail,” where such sentence was not authorized by state law); Moore v. State, 245 So. 2d 880 (Fla. 2d DCA1971) (same); State v. S. M. G., 313 So. 2d 761 (Fla. 1975) (judicial order requiring [*8] Page 8 of 11 mother of delinquent child to engage in drug rehabilitation was void, and therefore trial court lacked authority to hold her in contempt for failure to follow that order). The State argues that the trial court’s order fell within the inherent authority of the court. They cite no authority for the principle that a trial court possesses the authority to enjoin defendants at sentencing from people or places absent legislative authority. Had the trial judge placed Mr. Johnson on a probationary term for one year, as set forth by section 948.01(2), the court could have ordered him to stay away from a location as a condition of his probation. However, absent an order imposed as a condition of probation, we know of no statutory authority to support a stay away order imposed as part of a sentence. The State further argues that the stay away order was a downward departure. The concept of downward departure is codified to mean a departure from a sentence required under the criminal punishment code. Pursuant to section 921.0026, Florida Statutes, such departures apply to sentences imposed for felonies, not misdemeanors. Accordingly, we conclude that the trial court’s orders enjoining Mr. Johnson to avoid the El Charrito Supermarket were void, and therefore, the trial court lacked subject matter jurisdiction to hold him in contempt for [*9] Page 9 of 11 violation of those orders2. We therefore quash the contempt order and sentence. WALSH and SANTOVENIA, JJ. Concur TRAWICK, J., Concurring Judges handling criminal cases throughout the State of Florida are often faced with a dilemma similar to, if not the same as the one which confronted the trial judge here - a defendant charged with a “nuisance” or “quality of life” misdemeanor such as, for example, shoplifting, assault, disorderly conduct, urinating in public or trespassing. The victim - often a small corner store owner whose business is adversely impacted with this type of criminal activity, or a community which is plagued by persons who have little regard for the community’s residents - each wants to make sure that the defendant is prevented from coming back and repeating the crime. The prosecutor offers a plea to either probation or a relatively short jail sentence, most often credit time served. Included with the plea is a stay away order 2 Johnson also argues on appeal that even in situations where a stay away order is lawfully issued, the length of that stay away order cannot “exceed the statutory maximum sentence.” May v. State, 670 So. 2d 1103, 1103 (Fla. 2d DCA 1996). The stay away orders issued against Mr. Johnson were indefinite, which is longer than the maximum sentence for trespass: one year of imprisonment or probation. This also rendered the stay away orders illegal. Mr. Johnson concedes this particular argument was not provided to the trial court below, but this court may still address this argument because “an illegal sentence constitutes fundamental error which may be addressed for the first time on appeal.” Nelson v. State, 719 So. 2d 1230, 1231 (Fla. 1st DCA 1998). [*10] Page 10 of 11 from a specified location. The defendant, for a variety of reasons, either has no permanent address and so is not eligible to be placed on probation, or he or she does not want to be placed under such supervision. Instead, being anxious to get out of jail or just wanting get the case over with, the defendant agrees to the credit time served offer along with a “freestanding” or “stand alone” stay away order. The defense attorney, knowing that his or her client doesn’t want to fight the charge, does not object. The court, happy to get another case off of its crowded docket, quickly conducts a plea colloquy and moves on to the next case, not really considering whether jurisdiction will exist if there is a violation of the stay away order. Soon after his or her release, the defendant goes back to the store or other area covered by the stay away order and is re-arrested for a new offense. More likely than not, the stay away order violation is ignored while a resolution of the new case is being considered. The prosecutor offers, the defendant agrees to, and the court accepts another plea which again includes a stand alone stay away order. The defendant is released and returns to the prohibited area. Violate, repeat, violate, repeat. And on, and on, and on.

This is a vexing problem for everyone involved. Our decision here establishes what most of us know but choose to ignore - a trial court does not have jurisdiction to issue a stand alone stay away order unless such an order is statutorily prescribed, such as for the offense of stalking pursuant to section 784.048, Florida Statutes. As [*11] Page 11 of 11 the majority opinion’s analysis aptly demonstrates, such an order is void and cannot be enforced based upon the court’s “inherent authority.” While victims of “nuisance” or “quality of life” offenses beg - no, demand - that prosecutors and judges help keep repeat offenders out of their businesses and communities, the judicial system is constrained as to how much it can do under the law. This is a problem that begs for a legislative fix. Until that happens, our courts, regrettably, will continue to issue unenforceable stand alone stay away orders. Defendants, knowing that nothing will come of such an order, will continue to violate them with impunity. Disregard of court orders should never be tolerated in a society of laws. This is even more problematic when the orders are meant to benefit crime victims. The clock is running and the ball rests not with the judiciary, but in the hands of the State Legislature.

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NOT REPRESENTED BY COUNSEL.

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