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


Menu:
  •                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.
    -2-
    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
    -3-
    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
    -4-
    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.
    -5-
    

Document Info

Docket Number: Case 2D15-5131

Citation Numbers: 206 So. 3d 120, 2016 Fla. App. LEXIS 17997

Judges: Morris, Lucas, Rothstein-Youakim

Filed Date: 12/7/2016

Precedential Status: Precedential

Modified Date: 10/19/2024