DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD CARL CALDWELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-117
[May 18, 2022]
Appeal from the County Court for the Nineteenth Judicial Circuit,
St. Lucie County; Daryl J. Isenhower, Judge; L.T. Case Nos.
562020AP000027 and 562019MM002042.
Carey Haughwout, Public Defender, and Ross Frank Berlin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
Richard Carl Caldwell (“Defendant”) appeals his convictions and
sentences for forty-one counts of misdemeanor violation of a condition of
pretrial release from a domestic violence charge pursuant to section
741.29(6), Florida Statutes (2019). On appeal, Defendant argues:
(1) his convictions are fundamentally erroneous because he did not violate
a condition of pretrial release within the meaning of section 741.29(6);
(2) the county court considered an impermissible sentencing factor; and
(3) the county court erred by imposing a mental health evaluation as a
special condition of probation. We affirm on the second issue without
further comment. For the reasons articulated below, we affirm on the first
issue and reverse on the third issue.
The facts in this case are largely undisputed. Defendant was arrested
for domestic battery in August 2019. At first appearance, the court set
Defendant’s bond at $15,000, and ordered that he have no contact with
the victim as a condition of pretrial release. Defendant did not post bond
and, consequently, was not released from jail.
While in jail on the domestic battery charge, Defendant made a plethora
of phone calls to the victim. During several of the calls, Defendant
acknowledged he could get in trouble for contacting the victim due to the
no contact order. The State thereafter charged Defendant with fifty counts
of misdemeanor violation of a condition of pretrial release from a domestic
violence charge pursuant to section 741.29(6), Florida Statutes. At the
trial on the violation charges, Defendant admitted to making the phone
calls, and further admitted to intentionally using the phone credentials of
other inmates for some of the calls. Nonetheless, Defendant testified that
because he never bonded out after his initial arrest on the domestic battery
charge, he did not believe the no contact condition applied.
The jury ultimately found Defendant guilty on forty-one of the fifty
counts. The county court thereafter adjudicated Defendant guilty in
accordance with the verdict, and sentenced him to an overall aggregate
sentence on all counts of five years in prison followed by five years of
probation. After the sentence was pronounced, the State requested the
county court impose as a special condition of probation that Defendant
undergo a mental health evaluation and submit to any recommended
treatment. The only argument advanced by the State in support of the
special condition was that the victim “would like” Defendant to undergo a
mental health evaluation. The county court agreed to the special
condition, stating “I don’t suppose that could hurt.” Defendant did not
immediately object to the imposition of this special condition. Defendant
later filed a rule 3.800(b)(2) motion to correct his sentence, arguing there
was no reasonable nexus between the special condition and the crimes
committed. The county court denied the motion. This appeal follows.
We begin our analysis by addressing Defendant’s argument that his
convictions are fundamentally erroneous because he did not violate a
condition of pretrial release within the meaning of section 741.29(6),
Florida Statutes. Section 741.29(6) defines the crime of violation of a
condition of pretrial release and provides that:
A person who willfully violates a condition of pretrial release
provided in s. 903.047, when the original arrest was for an act
of domestic violence . . . , commits a misdemeanor of the first
degree . . . .
§ 741.29(6), Fla. Stat. (2019). Section 903.047, which is explicitly
referenced in section 741.29(6), sets forth the conditions of pretrial release
and provides in relevant part:
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(1) As a condition of pretrial release, whether such release is
by surety bail bond or recognizance bond or in some other
form, the defendant must:
(a) Refrain from criminal activity of any kind.
(b) If the court issues an order of no contact, refrain from any
contact of any type with the victim, except through pretrial
discovery pursuant to the Florida Rules of Criminal
Procedure. An order of no contact is effective immediately and
enforceable for the duration of the pretrial release or until it
is modified by the court. The defendant shall be informed in
writing of the order of no contact, specifying the applicable
prohibited acts, before the defendant is released from custody
on pretrial release. . . .
§ 903.047(1)(a)–(b), Fla. Stat. (2019) (emphasis added).
On appeal, Defendant argues he did not “violate a condition of pretrial
release” within the plain and ordinary meaning of the language used in
section 741.29(6). Specifically, he maintains that “[t]he plain and obvious
meaning of the phrase ‘violates a condition of pretrial release,’ in the
context of Sections 741.29(6) and 903.047, requires a defendant to post a
bond and thereby effectuate his pretrial release before he can violate a
condition of that release and commit the crime defined in Section
741.29(6).” Thus, because Defendant did not post bond to effectuate his
release, his conduct could not constitute a violation of a condition of
pretrial release. We disagree as Defendant’s interpretation of section
741.29(6) ignores and renders meaningless the language in section
903.047(1)(b) providing that “[a]n order of no contact is effective
immediately.”
“When construing the meaning of a statute, we must first look at its
plain language.” McKenzie Check Advance of Fla., LLC v. Betts,
928 So. 2d
1204, 1208 (Fla. 2006). “It is a fundamental rule of statutory construction
that the entire statute under consideration must be considered in
determining legislative intent” and “[e]ffect must be given to every part of
the section and every part of the statute as a whole.” State v. Rodriguez,
365 So. 2d 157, 159 (Fla. 1978). Moreover, “courts should avoid readings
that would render part of a statute meaningless.” Unruh v. State,
669 So.
2d 242, 245 (Fla. 1996) (quoting Forsythe v. Longboat Key Beach Erosion
Control Dist.,
604 So. 2d 452, 456 (Fla. 1992)).
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Here, because section 903.047 is referenced in section 741.29(6), both
statutes must be construed together to harmonize the statutes and give
effect to the legislature’s intent. Section 741.29(6) provides that
“[a] person who willfully violates a condition of pretrial release provided in
s. 903.047 . . . commits a misdemeanor of the first degree.” § 741.29(6),
Fla. Stat. (2019). Section 903.047, in turn, sets out the conditions of
pretrial release and includes as an available condition that the defendant
“refrain from any contact of any type with the victim.” § 903.047(1)(b), Fla.
Stat. (2019); see also Sheppard v. State,
974 So. 2d 529, 531 (Fla. 5th DCA
2008) (recognizing that “[t]he conditions of pretrial release set out in
section 903.047 . . . include the prohibition of contact by the defendant
with the victim”). There is no language in either section dictating that a
defendant must be released from jail in order to violate the condition of
pretrial release prohibiting contact with the victim. To the contrary, the
language in section 903.047(1)(b) expressly states that, “[a]n order of no
contact is effective immediately.” § 903.047(1)(b), Fla. Stat. (2019)
(emphasis added). Simply put, the plain language of sections 741.29(6)
and 903.047(1)(b) support the conclusion that a defendant can violate a
condition of pretrial release prohibiting contact with the victim before
being released from jail. Any other interpretation of the statutes would
render meaningless the “effective immediately” language in section
903.047(1)(b).
Our holding is supported by Florida Standard Criminal Jury
Instruction 8.25 and the Florida Supreme Court’s interpretation of that
instruction. Instruction 8.25, which was adopted in 2014, sets forth the
elements the State must prove to convict a defendant of violating a
condition of pretrial release under section 741.29(6) as follows:
1. (Defendant) was arrested for an act of domestic violence.
2. Before [his] [her] trial, (defendant’s) release on the domestic
violence charge was set with a condition of (insert condition of
pretrial release in Fla. Stat. 903.047).
3. (Defendant) knew that a condition of [his] [her] pretrial
release was (insert condition).
4. (Defendant) willfully violated that condition of pretrial
release by (insert the manner in which the defendant is alleged
to have violated pretrial release).
Fla. Std. Jury Instr. (Crim.) 8.25 (emphasis added). In adopting the
standard instruction, the Florida Supreme Court stated: “Element number
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two to instruction 8.25—i.e., ‘Before [his] [her] trial, (defendant’s) release
on the domestic violence charge was set with a condition of (insert
condition of pretrial release in Fla. Stat. 903.047)’—reflects the
interpretation that one can violate a condition of pretrial release before being
released from jail.” In re Standard Jury Instructions in Crim. Cases—
Instruction 8.25,
141 So. 3d 1201, 1202 (Fla. 2014) (emphasis added).
The holding in Santiago v. Ryan,
109 So. 3d 848 (Fla. 3d DCA 2013),
further supports our holding. In that case, the defendant was arrested
and charged with aggravated stalking.
Id. at 849. At first appearance, the
trial court set bond and ordered the defendant have no contact with the
victim as a condition of pretrial release pursuant to section 903.047(1)(b).
Id. While still in jail, the defendant made several threatening phone calls
to the victim.
Id. Based on those calls, the defendant was arrested on a
new case and charged with aggravated stalking, witness tampering, and
violation of a temporary restraining order.
Id. The trial court thereafter
set a separate bond for the aggravated stalking and witness tampering
charges, and released the defendant on his own recognizance on the
remaining offenses.
Id. The defendant ultimately posted bond in both
cases and was released from jail.
Id. at 849–50. When the defendant
appeared before the trial court for his arraignment on the first case, the
court sua sponte revoked his bond on that first case pursuant to section
903.0471, Florida Statutes.
Id. at 850. That statute permits the sua
sponte revocation of a defendant’s pretrial release based upon a finding of
“probable cause to believe that the defendant committed a new crime while
on pretrial release.”
Id. at 849 (quoting § 903.0471, Fla. Stat.).
On habeas corpus review of the order revoking the defendant’s pretrial
release, the Third District framed the legal issue presented as whether
section 903.0471, Florida Statutes, “applies when the defendant commits
new felonies from jail during the period between the setting of bond for
previous offenses and his release.” Id. In denying habeas corpus relief,
the court rejected the defendant’s claim that his new crimes were not
committed “while on pretrial release” within the meaning of that phrase as
used in section 907.0471, and concluded that the defendant’s bond on the
initial aggravated stalking charge could be revoked based on conduct
occurring “after the bond on his first case [was] set but before he [was]
released on the bond.” Id. at 850. In so holding, the court also stated,
“we think that the claim that a defendant is free to commit new crimes
without endangering a previous order of pretrial release merely because
he had not yet complied with the conditions requires an unsupportable
anomaly in the statute, which . . . we will not approve.” Id. at 851.
Thus, although the Santiago case did not address section 741.29(6),
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it nonetheless supports the notion that a defendant can violate the terms
of pretrial release before being released from jail.
We next address Defendant’s argument that the county court
erroneously imposed a mental health evaluation as a special condition of
probation. A court is statutorily authorized to impose “special terms and
conditions of probation or community control.” § 948.039, Fla. Stat.
(2019). “To impose a special condition of probation, there must be a
reasonable nexus between the condition and the crime committed.”
Carone v. State,
975 So. 2d 553, 554 (Fla. 4th DCA 2008); see also
§ 948.039, Fla. Stat. (“The terms and conditions should be reasonably
related to the circumstances of the offense committed and appropriate for
the offender.”). A special condition of probation is therefore “invalid if
‘it (1) has no relationship to the crime of which the offender was convicted,
(2) relates to conduct which is not in itself criminal, and (3) requires or
forbids conduct which is not reasonably related to future criminality.’”
Lizano v. State,
239 So. 3d 714, 716 (Fla. 4th DCA 2018) (quoting Biller v.
State,
618 So. 2d 734, 734–35 (Fla. 1993)).
The challenged special condition of probation in this case has no
relationship to the charged crimes, does not prohibit conduct that is itself
criminal, and does not appear to have any reasonable relationship to
Defendant’s future criminality. The State nonetheless argues that
Defendant’s “blatant disregard” of the no contact order demonstrates that
he “had no understanding or appreciation” for the criminality of his
conduct. However, criminality alone does not justify the imposition of a
mental health evaluation as a special condition of probation, particularly
in a case like the present where there is no indication Defendant’s mental
health played a role in his crimes. Thus, the special condition requiring
Defendant to submit to a mental health evaluation must be stricken.
For the foregoing reasons, we affirm Defendant’s convictions, reverse
the portion of his sentence imposing a mental health evaluation as a
special condition of probation, and remand for the county court to strike
the special condition.
Affirmed in part, reversed in part, and remanded.
GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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