CHARLIE DENNIS ALTMAN

v.

THE STATE OF FLORIDA

LOGUE, J.

Charlie Dennis Altman appeals the trial court’s order revoking probation and imposing sentence. We affirm because there is competent substantial evidence in the record to support the trial court’s determination that Altman willfully and substantially violated the conditions of his probation and, therefore, the trial court did not abuse its discretion in revoking Altman’s probation. Furthermore, the trial court did not consider uncharged conduct as a basis for revoking Altman’s probation, and it did not err in denying Altman’s request to be resentenced by a different judge. Factual and Procedural History Altman was charged with aggravated stalking in violation of section 784.048 (case no. 2018-CF-100-AK); grand theft in violation of sections 812.014(1) and 812.014(2)(c) (case no. 2018-CF-443-AK); organized scheme to defraud in violation of section 817.034, and four counts of cashing or depositing item with intent to defraud in violation of section 832.05(3) (case no. 2018-CF-793-AK). On October 10, 2019, Altman entered a plea of nolo contendere pursuant to a negotiated plea agreement. Altman was adjudicated guilty in all three cases and placed on five years’ probation, with the probationary periods to run concurrently.

The plea agreement required Altman to leave and remain out of Monroe County from October 12, 2019, at 12:00 p.m. until the successful completion of his probation. During sentencing, the trial court discussed this condition with the prosecutor, defense counsel, and Altman and it was

Analysis

This Court reviews a trial court’s revocation of probation for abuse of discretion. Towns v. State, 259 So. 3d 291, 293 (Fla. 3d DCA 2018). We review the trial court’s finding of a willful and substantial violation to determine whether it is supported by competent substantial evidence. Id. 11  Altman argues the trial court abused its discretion in revoking his probation because he committed only technical violations, did not commit any new crimes, and made a good faith effort to comply with the conditions of his probation. Altman further contends the trial court erred in considering uncharged conduct as a basis for revoking his probation and in denying his request to be resentenced in front of a different judge. We find that the record contains competent substantial evidence to support the trial court’s finding that Altman willfully and substantially violated his probation by leaving his county of residence and changing his residence without first procuring the consent of his probation officer. Altman admitted violating on three separate occasions. His first violation occurred only a month into his probation when he left for South Carolina. His probation officer advised him this was a violation and instructed him to return. Altman complied and returned the next day. Had this been Altman’s only violation, this matter might be like Carter v. State, 659 So. 2d 453 (Fla. 4th DCA 1995), the Fourth District decision on which Altman relies. See id. at 454 (noting the affidavit alleged only a single violation concerning the unauthorized move from Alabama and not a reporting violation upon defendant's return to Florida). 12  However, Altman admitted he returned to South Carolina three days after his first violation (which, again, occurred only a month into his probationary term) and stayed there for over a year, even after learning that there was a warrant out for his arrest for violating his probation by returning to South Carolina without the consent of his probation officer. Altman alleged at the probation violation hearing that upon returning to Florida after his first violation, his probation officer told him the transfer request was put in and that he “filled out all of the paperwork” for the transfer. He alleged that the probation officer never told him that he could not leave Florida again after he filled out the paperwork for the transfer.

This is, however, where the record becomes at odds with Altman’s version of events. The amended affidavit of violation of probation, completed after Altman’s second violation for returning to South Carolina, indicates that the probation officer’s supervisor spoke with Altman on November 22, 2019, regarding the transfer to South Carolina and instructed him to come in the following Wednesday at 10:00 a.m. to fill out the transfer application, but Altman never showed up. The amended affidavit further provides that the probation officer spoke with Altman on December 16, 2019 and instructed him to report for the month but again, he never showed up. Detectives attempting to serve the arrest warrant on Altman on January 8, 2020, learned 13 from his friend that Altman returned to South Carolina. The probation officer attempted to contact Altman on January 17, 2020, without success as his phone was disconnected and she received no response from Altman’s mother. These portions of the record contradict Altman’s claim that he filled out the transfer paperwork and believed he was free to return to South Carolina.

Furthermore, Altman knew of the outstanding arrest warrant for a year and never attempted to turn himself in. While he alleged at the violation hearing that he was on his way to turn himself in when he was arrested, he was picked up in Broward County, not in Key West. Altman also faults the pandemic, but COVID-19 related lockdowns did not begin until March 2020, while Altman left for South Carolina a second time around late November or early December of 2019 and learned of the outstanding arrest warrant in February 2020, all before the pandemic became an issue. Moreover, as the trial court noted at the violation hearing, the courts were not shut down during this time.

Based on the foregoing, there is competent substantial evidence in the record supporting the trial court’s finding of a willful and substantial violation of the Order of Probation. 14  As to Altman’s contention that the trial court considered uncharged conduct as a basis for revoking his probation, this argument is without merit. The record reflects the trial court considered only the conduct charged in the second amended affidavit of violation of probation. Specifically, that Altman left his county of residence twice and changed his residence to South Carolina all without first procuring the consent of his probation officer. While the trial court early in the violation hearing characterized Altman’s conduct as absconding, the fact remains that the only actual conduct relied on by the trial court in finding a willful and substantial violation was that specifically provided in the second amended affidavit.

Altman’s reliance on the First District’s decision in Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003), is misplaced because the First District did not reverse in that instance based on the trial court’s characterization of the defendant’s actions as absconding, despite that language not being used in the violation affidavit. Rather, the court reversed because the trial court revoked probation based on a different time period than that contained in the violation affidavit. Id. at 277-78. Here, in contrast, the trial court relied on the specific conduct alleged in the second amended affidavit. Finally, Altman contends the trial court erred in denying his request to be resentenced in front of a different judge. Altman argues that the trial 15 court’s decision to resentence him to consecutive terms indicated the trial judge was predisposed to run Altman’s sentences consecutively and was biased against him based on Altman’s comment during his first violation hearing. However, Altman’s arguments disregard the fact that the trial court considered Altman’s mitigation evidence in reducing his sentence to 45month terms. While the trial court still ordered these terms to run consecutively rather than concurrently, the trial court stated throughout the hearing that it was not under “the impression that, you know, I feel as though I’m bound by what I did last time, because I’m not”; “what happened last time is neither here nor there[;]” “[t]his is a de novo sentencing proceeding[;]” and that he had given the case “a great deal of consideration.” The trial court was within its discretion to resentence Altman to consecutive terms, and the trial court’s comments during resentencing indicate it gave due consideration to this issue and did not feel compelled or bound to impose the same sentence based on what occurred during the first violation hearing. Accordingly, we affirm the trial court’s revocation of probation and imposition of sentence in all respects.

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