Martin v. State , 238 So. 3d 369 ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed December 13, 2017.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-2374
    Lower Tribunal No. 12-30062
    ________________
    Thaddeus Chaylon Martin,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
    Circuit Court for Miami-Dade County, Victoria R. Brennan and Nushin Sayfie,
    Judges.
    Gyden Law Group and Henry G. Gyden (Tampa), for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
    Attorney General, for appellee.
    Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
    EMAS, J.
    Thaddeus Chaylon Martin appeals four orders of the trial court: 1) an order
    denying a motion to disqualify the original trial judge; 2) an order denying a
    motion for reconsideration of a prior ruling of the original trial judge; 3) an order
    denying a motion for postconviction relief under Florida Rule of Criminal
    Procedure 3.850; and 4) an order denying a motion for rehearing of the order
    denying the motion for postconviction relief.
    As to the order denying Martin’s motion to disqualify, we find no error.
    Before Martin even filed his motion to disqualify, the original trial judge (who was
    the subject of the motion to disqualify) was already reassigned to the juvenile
    division, and therefore was no longer presiding over Martin’s case.       The newly-
    assigned judge correctly denied Martin’s motion both on its merits and in light of
    the reassignment of the original trial judge. See Neal v. State, 
    929 So. 2d 59
     (Fla.
    5th DCA 2006) (holding that motion to disqualify postconviction judge from
    ruling on defendant’s motion for rehearing of his motion for postconviction relief
    was rendered moot by that judge’s reassignment to another division).
    We also find no error in the order denying Martin’s motion for
    reconsideration of the prior ruling of the original trial judge, given that the motion
    to disqualify was denied on its merits.         See Fla. R. Jud. Admin. 2.330(h)
    (providing that prior rulings “by a disqualified judge may be reconsidered by a
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    successor judge upon a timely-filed motion for reconsideration”) (emphasis
    added).1
    As to Martin’s final claims, we affirm the trial court’s order denying his
    motion for postconviction relief (rendered by the original trial judge) and order
    denying rehearing (rendered by a second trial judge), which motions were
    premised on a claim of ineffective assistance of trial counsel. Martin claims that,
    at his first probation violation hearing in 2013, his counsel provided ineffective
    assistance by failing to advise Martin that he had not been lawfully placed on
    probation on Count Two during his original plea and sentence in 2013. Martin
    asserts that, had he been so advised, he would not have admitted to the subsequent
    violation of probation in 2014, and instead would have insisted on proceeding to a
    probation violation hearing, where it would have been established he was in fact
    not on probation for Count Two (and therefore could not have “violated” his
    probation).
    1  Although not raised by Martin, we have considered the applicability of our
    previous decision in Barber v. Mackenzie, 
    562 So. 2d 755
     (Fla. 3d DCA 1990),
    and find it distinguishable. In Barber, petitioner filed a motion to disqualify the
    trial judge. After the motion was filed, the trial judge was transferred to another
    division, and the successor judge denied the motion to disqualify. On a petition for
    writ of prohibition, we held that the motion to disqualify was not rendered moot by
    the reassignment of the trial judge because, had the motion been granted (and in
    Barber we determined that it should have been granted), the successor judge could
    have reconsidered the original judge’s previous orders pursuant to rule 2.330(h).
    In the instant case, and upon our de novo review, we determine that the motion to
    disqualify was properly denied.
    3
    This claim fails because its premise (i.e., that he was never placed on
    probation on Count Two) is simply incorrect. The record—including the signed
    written plea agreement, the probation order, and the oral pronouncement as set
    forth in the transcript of the plea and sentencing hearing—establishes that Martin
    pleaded guilty to a two-count information, pursuant to which he would be placed
    on a concurrent, one-year term of probation as to each count of the information.2
    To the extent that the judgment and sentence for Count Two omitted the one-year
    probationary term, or otherwise conflicted with the oral pronouncement of the trial
    court at the original sentencing, such an error is subject to correction by the trial
    court, as the oral pronouncement controls. See Ashley v. State, 
    850 So. 2d 1265
    (Fla. 2003) (oral pronouncement controls over written document). Where a conflict
    2 The 2013 written plea agreement provided that, in exchange for Martin’s plea of
    guilty to Count Two (charging aggravated battery with great bodily harm), the trial
    court would adjudicate Martin guilty and that “the defendant shall be placed on
    reporting probation, concurrent with Count 1, and have the following special
    conditions. . . .” Martin expressly acknowledged in the written plea agreement that
    he entered the plea freely and voluntarily, after having consulted with his attorney,
    and that Martin understood that “failure to comply with any terms or conditions
    within this agreement constitutes a violation of probation and subjects me to be
    sentenced to the statutory maximum penalties provided by law for the crimes for
    which I am now pleading guilty.”
    Additionally, the trial court entered a probation order, also signed by Martin, which
    reflected that a probationary sentence was imposed on both counts of the
    information, and that order expressly incorporated the written plea agreement.
    Finally, the transcript of the plea colloquy establishes that the trial court orally
    pronounced that Martin was to be placed on probation for Counts One and Two for
    a concurrent period of one year, and Martin acknowledged this under oath.
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    exists between the written sentence and the oral pronouncement, the proper remedy
    is for the trial court to clarify or correct the sentence, consistent with the oral
    pronouncement. Chapman v. State, 
    14 So. 3d 273
     (Fla. 5th DCA 2009). Such a
    correction is cognizable as a motion to correct illegal sentence pursuant to Florida
    Rule of Criminal Procedure 3.800(a)(1), which provides that “[a] court may at any
    time correct an illegal sentence imposed by it . . . .”   See also Williams v. State,
    
    957 So. 2d 600
     (Fla. 2007).
    In the instant case, the trial court properly entered an order correcting the
    2013 sentence to ensure that the written judgment and sentence conformed to the
    oral pronouncement, which included a probationary term for Count Two. Martin’s
    counsel “cannot be deemed ineffective for failing to raise a meritless claim.”
    Peede v. State, 
    955 So. 2d 480
    , 502-03 (Fla. 2007). Had Martin’s counsel raised
    this issue prior to or at the time of the probation violation hearing, the proper
    remedy would have been for the trial court to enter a corrected judgment and
    sentence nunc pro tunc, properly reflecting the agreed-upon and orally pronounced
    sentence. Therefore, any inconsistency between the oral pronouncement and the
    written judgment and sentence (or the trial court’s correction of same) could not
    have affected the outcome of the proceeding because there is no reasonable
    probability that, but for this error or omission, Martin would not have entered a
    plea to the violation of probation and instead would have insisted on proceeding to
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    a violation of probation hearing. See Grosvenor v. State, 
    874 So. 2d 1176
    , 1181
    (Fla. 2004) (establishing two-pronged test for assessing claims of ineffective
    assistance of counsel relating to guilty pleas: the first prong is identical to the
    deficient performance prong in Strickland v. Washington, 
    466 U.S. 668
     (1984); the
    second prong requires that the defendant demonstrate “a reasonable probability
    that, but for counsel’s errors, the defendant would not have pleaded guilty and
    would have insisted on going to trial”).
    Affirmed.
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