Orr v. State , 2016 Fla. App. LEXIS 17997 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CAINETH JOSHUA ORR, )
)
Appellant, )
)
v. ) Case No. 2D15-5131
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 7, 2016.
Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.
Howard L. Dimmig, II, Public Defender,
and Robert D. Rosen, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa, for
Appellee.
MORRIS, Judge.
Caineth Orr appeals his three convictions and sentences, specifically
challenging his sentence of 364 days in jail followed by two years' drug offender
probation for the offense of resisting an officer with violence.1 He argues that his
sentence of drug offender probation is unlawful because his offense of resisting an
officer with violence did not qualify for drug offender probation. We agree and reverse
and remand for further proceedings.
Section 948.20(1), Florida Statutes (2014), provides when a trial court
may place a defendant on drug offender probation:
If it appears to the court upon a hearing that the defendant is
a chronic substance abuser whose criminal conduct is a
violation of s. 893.13(2)(a) or (6)(a), or other nonviolent
felony if such nonviolent felony is committed on or after July
1, 2009, and notwithstanding s. 921.0024 the defendant's
Criminal Punishment Code scoresheet total sentence points
are 60 points or fewer, the court may either adjudge the
defendant guilty or stay and withhold the adjudication of
guilt. In either case, the court may also stay and withhold
the imposition of sentence and place the defendant on drug
offender probation or into a postadjudicatory treatment-
based drug court program if the defendant otherwise
qualifies. As used in this section, the term "nonviolent
felony" means a third[-]degree felony violation under chapter
810 or any other felony offense that is not a forcible felony
as defined in s. 776.08.
Thus, to qualify for drug offender probation, the defendant's offense must be a violation
of section 893.13(2)(a) or (6)(a), a third-degree felony under chapter 810, or a felony
that is not a forcible felony under section 776.08. Orr's offense is resisting an officer
with violence which is prohibited by section 843.01, Florida Statutes (2014), and is
therefore not a violation of section 893.13(2)(a) or (6)(a) or chapter 810. See State v.
Roper, 915 So. 2d 622, 623-24 (Fla. 5th DCA 2005) (holding that trial court did not have
1
Orr was convicted after a jury trial. He was also convicted of possession
of marijuana (twenty grams or less), § 893.13(6)(b), Fla. Stat. (2014), and possession of
drug paraphernalia, § 893.147(1). He was sentenced to time served on both of those
misdemeanor charges.
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discretion to sentence defendant to drug offender probation because applicable version
of drug offender statute provided for such probation only for "violations of sections
893.13(2)(a) or (6)(a)" and defendant was convicted of section 893.13(1)(a)(1)); cf.
Sutton v. State, 128 So. 3d 957, 958-59 (Fla. 2d DCA 2013) (holding that trial court had
discretion to place defendant on drug offender probation where he was convicted of
third-degree felony of burglary under section 810.02, Florida Statutes (2010), and
amended version of drug offender statute "specifically include[d] third-degree felonies
under chapter 810 in its definition of nonviolent felonies").
Moreover, Orr's offense does not constitute a nonviolent felony as that
term is defined in section 948.20(1). The definition of nonviolent felony excludes
offenses that constitute forcible felonies under section 776.08. The list of forcible
felonies in section 776.08 includes "any other felony which involves the use or threat of
physical force or violence against any individual." This court has held that the offense of
resisting an officer with violence involves the use or threat of physical force or violence
because "[o]ne of the elements of resisting arrest with violence under section 843.01 is
either offering to do violence or actually doing it." Walker v. State, 965 So. 2d 1281,
1284 (Fla. 2d DCA 2007). Thus, resisting an officer with violence is a forcible felony,
and it therefore does not constitute a nonviolent felony that qualifies for drug offender
probation under section 948.20(1).
The State argues that even if Orr's offense does not qualify for drug
offender probation, the trial court was authorized to impose drug offender probation
because it is an alternative to the sentencing guidelines. See Jones v. State, 813 So.
2d 22, 24-25 (Fla. 2002) (holding that drug offender probation "provides an alternative
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sentencing scheme for drug abusers that is outside of the sentencing guidelines" and
that the laws prohibiting downward departure sentences based on substance abuse or
addiction do not apply when the trial court chooses to impose drug offender probation
for a qualifying offense). The State contends that the language of section 948.20(1)
applies only when the trial court imposes drug offender probation in lieu of a sentence,
not when the trial court imposes such probation in addition to a jail or prison sentence.
This argument is not supported by Jones or the language in section 948.20, which
authorizes the trial court to impose drug offender probation only under certain
circumstances for qualifying offenses. As noted above, drug offender probation was not
an option for the offense of resisting an officer with violence. See Lawson v. State, 969
So. 2d 222, 231 (Fla. 2007) ("There are three avenues in which the trial court may order
a probationer to complete a drug treatment program: (1) as a special condition of
ordinary probation; (2) as a condition of drug offender probation under section 948.20,
Florida Statutes (2005); or (3) as part of a 'treatment based drug court program' under
section 397.334, Florida Statutes (2005).").
Accordingly, we reverse the portion of Orr's sentence imposing drug
offender probation for the offense of resisting an officer with violence. On remand, the
trial court may resentence Orr to regular probation with special conditions that it deems
appropriate. See Redmond v. State, 970 So. 2d 915, 916 (Fla. 5th DCA 2007) (holding
that trial court was not authorized to impose drug offender probation for the offense of
delivery of cocaine under the 2005 version of section 948.20 but that on remand, the
trial court may impose regular probation with "special conditions as it deems
appropriate[,] provided that they are reasonably related to the offense and promote the
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rehabilitation of the defendant or the protection of the public"); see also Lawson, 969
So. 2d at 231-32 (recognizing that the trial court may order a probationer to complete a
drug treatment program as a special condition of ordinary probation).
Affirmed in part; reversed in part; remanded.
LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.
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