John Michael Armstrong, Jr. v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-2478
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JOHN MICHAEL ARMSTRONG, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.
September 14, 2022
PER CURIAM.
AFFIRMED.
ROBERTS and MAKAR, JJ., concur; TANENBAUM, J., dissents with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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TANENBAUM, J., dissenting.
This appeal is untimely, so we lack jurisdiction to dispose of it
on the merits. On November 6, 2019, the trial court accepted John
Armstrong’s plea and adjudicated him guilty of felony battery. The
court placed him on probation in lieu of sentencing. On May 18,
2021, Armstrong appeared at a hearing before the trial court to
answer to roughly eight different ways he was alleged to have
violated that probation. He admitted to violating, both in writing
and in court; after the appropriate due-process colloquy, the trial
court revoked probation and sentenced Armstrong to five years in
prison. The sentencing order appears to have been rendered that
same day; the revocation order was rendered a week later, on May
26.
Armstrong then filed a motion to withdraw his admission to
the probation violation. The trial court had a hearing on the motion
and orally denied it on July 23, 2021. In a notice of appeal filed
August 13, 2021, Armstrong sought review of his judgment and
sentence and the order denying his motion to withdraw. * After the
appeal was filed, the trial court rendered an order that denied the
motion “nunc pro tunc,” without further explication, on September
8, 2021.
The Florida Constitution gives the supreme court the
authority to set by rule “the time for seeking appellate review.”
Art. V, § 2(a), Fla. Const. For criminal appeals, the court has set
that time at thirty days from rendition of a defendant’s sentence.
Fla. R. App. P. 9.140(b)(3). This is jurisdictional. See State ex rel.
* At no point has Armstrong moved to withdraw his guilty plea
that resulted in the 2019 adjudication of guilt. For this reason,
Armstrong’s effort to appeal his judgment of conviction in this case
is improper. See Fla. R. App. P. 9.140(b)(2)(A)(ii)c. (allowing an
appeal of a guilty plea that a defendant contends to have been
involuntary only if preserved by a motion to withdraw the plea).
Instead, he presumably meant to appeal the revocation order,
along with the resulting sentence. See Fla. R. App. P.
9.140(b)(1)(D) (allowing an appeal of an order revoking probation
rendered after a final judgment or determination of guilt).
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Diamond Berk Ins. Agency, Inc. v. Carroll, 102 So. 2d 129, 131 (Fla.
1958). Armstrong filed his notice nearly three months after
rendition of his sentence. Perhaps he thought rendition was tolled
by his filing of the motion to withdraw his admission to the
probation violations. If so, he was mistaken. Cf. Fla. R. App. P.
9.020(h)(1) (setting out the motions that toll rendition).
While it is true that rendition will be tolled by a motion to
withdraw a plea pursuant to Florida Rule of Criminal Procedure
3.170(l), see Fla. R. App. P. 9.020(h)(1)(I), Armstrong’s motion is
not such a motion. Consider where rule 3.170 appears in the
criminal rules in relation to the rule governing violations of
probation. The criminal rules are set out to track chronologically
the typical criminal process. First there are some preliminary and
general provisions. Then come those addressing preliminary
proceedings (e.g., arrest, bail, charging), followed by rules dealing
with arraignments and pleas, including rule 3.170. Rules covering
pretrial motions, discovery, trial, and sentencing follow from there.
Toward the end, before the rules covering execution of the sentence
and postconviction relief, is Florida Rule of Criminal Procedure
3.790, which governs probation and revocation. There is no cross-
reference in this rule to rule 3.170 or otherwise to “pleading guilty”
to an alleged probation violation, and there is no other apparent
procedural relationship between rules 3.170 and 3.790. In fact,
both rule 3.790 and its authorizing statute make specific and
repeated references to admitting to an alleged violation, rather
than pleading to one. See Fla. R. Crim. P. 3.790(b)(1);
§ 948.06(2)(a), (c), (d), Fla. Stat.
Moreover, the placement of rule 3.790 at the other end of the
criminal rules from the rule on pleas, together with the use of
“admission” rather than “plea,” is commensurate with the fact that
a revocation hearing (which necessarily comes after guilt has been
determined and probation imposed) is not the same as a plea
hearing held during the pretrial phase of a criminal case. Indeed,
there is no need for a “plea,” in the formal sense, in a revocation
hearing because there is no pleading (read: charging instrument)
that requires the defendant’s response: His guilt was determined
much earlier in the process, before probation was imposed. The
question before the trial court in a revocation hearing is limited to
whether the defendant in fact violated the conditions and whether
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the trial court should revoke its previous probation order and put
the defendant back on track for sentencing. Probation “is a matter
of grace,” so while a revocation hearing must meet some minimal
due process requirements, it is not a criminal trial and “need not
meet the strict requirements of” one. Baker v. State, 319 So. 2d 628,
629 (Fla. 1st DCA 1975) (“Baker was advised of the charge of
violation, and after counselling with his attorney admitted the
charge was true. This was sufficient.”); Douglas v. State, 433 So.
2d 12, 13–14 (Fla. 1st DCA 1983) (“While minimal due process
standards must be met in probation revocation proceedings, it is
not necessary to meet the strict requirements of a criminal trial.”).
I venture to submit that the motion to withdraw the admission
was a nullity: Because there is no rule or statute providing for
reconsideration of a revocation order (including reconsideration
based on the involuntariness of the violation admission), the trial
court lacked jurisdiction to consider such a motion. Kippy Corp. v.
Colburn, 177 So. 2d 193, 199 (Fla. 1965) (“We here decide that . . .
a trial court has no authority to modify, amend or vacate a final
order, except in the manner and within the time provided by rule
or statute . . . .”); cf. Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson,
236 So. 2d 1, 4 (Fla. 1970); State v. M.C., 666 So. 2d 877, 878 (Fla.
1995). Any procedural defects in the revocation hearing already
would be reviewable on appeal based on the transcript of the
proceeding; no motion is necessary to preserve any reviewable
question for appeal. Cf. Johnson v. State, 776 So. 2d 1024, 1025
(Fla. 1st DCA 2001) (explaining that if a defendant admits to
violating probation, “there is no requirement that a determination
be made as to the factual basis of the plea or that the plea was
freely and voluntarily given”).
Because the motion to withdraw the violation admission was
not authorized in any respect, it could not toll rendition of the
revocation and sentencing orders. That rendition occurred months
prior to Armstrong’s commencement of this appeal. The appeal
should be dismissed.
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Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Darcy O. Townsend,
Assistant Attorney General, Tallahassee, for Appellee.
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