Michael Joseph Nilio v. State of Florida ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL JOSEPH NILIO, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-0251/15-0498
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 22, 2015.
An appeal from an order of the Circuit Court for Nassau County.
Robert M. Foster, Judge.
Michael Joseph Nilio, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.
PER CURIAM.
This opinion addresses two cases which have been consolidated for purposes
of travel and disposition. The consolidated cases involve the appeal of the denial
of two postconviction motions, one filed in September of 2013 (case 15-0498), and
one filed in February of 2014 (case 15-0251), both of which raise the same issue.
We reverse and remand the denial of the appellant’s September 2013 motion for
postconviction relief. Because the February 2014 motion raises the same claim, 1
which is to be addressed on remand, we affirm the summary denial of the February
2014 motion.
In November of 2010, the appellant entered a plea of guilty to numerous
counts in eight cases in exchange for concurrent sentences of 5 years’
imprisonment on the third degree felonies, and 8 years’ imprisonment, to be
followed by 5 years on probation for the second degree felonies. The appellant
then filed a number of postconviction motions. In an order rendered on April 17,
2012, the trial court denied all pending motions. However, that order also found
that the appellant’s probation “would be terminated early upon payment in full of
all costs, fees and restitution.” The order directed the clerk of the lower court to
“ensure that Amended Judgments and Sentences are prepared to accurately reflect
the agreement.” The same day the order was entered, an amended written
judgment and sentence appears to have been filed. That judgment and sentence,
which was entered nunc pro tunc to the November 2010 judgment and sentence,
states:
In imposing the above sentence, the Court further orders
1
The appellant’s February 2014 motion also raised a double jeopardy claim. We
affirm the denial of that claim without further discussion.
2
the defendant’s probation will terminate early upon payment in full
of all costs, fees and restitution and that the defendant further
authorized his attorney accept this agreement, waiving his appearance,
which was done in open court . . . and agreed upon by the State and
the Court.
(bold emphasis added, underline emphasis in the original).
In September of 2013, the appellant filed a motion for postconviction relief
alleging that he attempted to submit payment in full for all court costs, fines and
restitution, but the court refused payment. The appellant therefore alleged that he
was entitled to have all his probationary periods terminated. The trial court denied
the motion without explanation. On appeal, this Court reversed and remanded for
the attachment of records refuting appellant’s claim or an evidentiary hearing. See
Nilio v. State, 143 So. 3d 424 (Fla. 1st DCA 2014). In response to this Court’s
mandate, the lower court denied the appellant’s motion again. That order included
attachments indicating that there was no plea term or agreement that the
appellant’s probation would automatically terminate. Instead, the court found that
the early termination of probation was discretionary. Specifically, the court cited
the trial court’s oral pronouncement at the November 2010 sentencing that
probation may terminate early without any further contact with the court upon the
payment of all costs, fees and restitution. The trial court also attached a portion of
a hearing held in July of 2011 on a previous postconviction motion, during which
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counsel for the appellant and the trial court allegedly agreed that there was no
“automatic” termination provision.
In February of 2014 (case 15-0251 on appeal), the appellant filed another
postconviction motion alleging that the written judgment and sentence entered on
April 17, 2012, nunc pro tunc to November 2010, does not comport with the oral
pronouncement because it does not state that probation will end “without further
contact with the court.” The appellant also alleged that some of his convictions are
duplicative and thus violate double jeopardy. The trial court denied the motion,
holding that the issue had already been raised and denied multiple times.
In both motions, the appellant asserts that his judgment and sentence called
for the probationary sentences to end automatically upon the payment of all
restitution, costs and fees. The trial court has repeatedly denied this claim by
citing to the transcript of the original November 2010 plea hearing, which indicates
that the court “may” terminate probation early upon the payment of all fees.
However, the appellant asserts that the November 2010 judgment and sentence is
no longer operative, as an amended judgment was entered in April of 2012, which
specifically stated that probation “will” terminate early upon the payment in full of
appellant’s monetary obligations. The trial court has never addressed the
appellant’s specific claim that he is entitled to have his probationary sentences
terminated pursuant to the 2012 judgment and sentence. Accordingly, in case 15-
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0498, we reverse and remand for the trial court to attach portions of the record
refuting the appellant’s claim that he is entitled to have his probationary periods
terminated pursuant to the April 2012 judgment and sentence, or to hold an
evidentiary hearing.2 We affirm the denial of the appellant’s motion filed in
February 2014.
AFFIRMED in part, REVERSED and REMANDED in part for further
proceedings.
THOMAS, MARSTILLER, and BILBREY, JJ., CONCUR.
2
We express no opinion on whether the appellant has in fact paid all the costs,
fees and restitution as required for the probationary periods to be terminated.
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