Donovan L. Patterson v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DONOVAN L. PATTERSON,
Appellant,
v. Case No. 5D15-2181
STATE OF FLORIDA,
Appellee.
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Opinion filed March 24, 2016
Appeal from the Circuit Court
for Orange County,
Marc L. Lubet, Judge.
James S. Purdy, Public Defender,
and Ailene S. Rogers, Assistant
Public Defender, Daytona Beach, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel A.
Perrone, Assistant Attorney General,
Daytona Beach, for Appellee.
COHEN, J.
Donovan L. Patterson appeals the sentence imposed following his plea to
possession of a controlled substance with intent to sell or deliver, and possession of a
firearm by a convicted felon.
Patterson was in jail when he agreed to enter a negotiated plea of no contest to
both charges. The trial court initially sentenced Patterson to fifteen years and released
him pending the final sentencing hearing. The trial court agreed to reduce his sentence
to eight years upon remand to custody, on the condition that Patterson appear at
sentencing and not commit any new offenses while on release. If Patterson either failed
to appear for sentencing or committed a new infraction, the court stipulated that it could
impose any sentence up to the statutory maximums.1
To emphasize the point, the trial judge warned Patterson, “If you show up and
have been picked up or arrested for anything new between now and [sentencing], I am
not bound by this agreement. Do you understand?” Patterson assured the court he did.
The trial judge continued, “When—and I tell you this much: if you . . . don’t show up [for
sentencing,] when they catch you, not only am I going to leave the fifteen years on
Count I, I will probably give you a consecutive fifteen on [c]ount III. Do you understand?”
Patterson again assured the court that he understood.
Patterson appeared at sentencing as directed, but the trial judge informed him
that the court had received an affidavit from law enforcement alleging that Patterson
had committed a new infraction.2 Patterson did not object to the affidavit or raise any
issues at that time. The trial judge did not reduce the sentence on the drug charge from
fifteen to eight years. Rather, he sentenced Patterson to concurrent fifteen-year
sentences on the drug and firearm charges with a three-year minimum mandatory
sentence on the firearm charge.
1
This is commonly referred to as a Quarterman release. See Quarterman v.
State, 527 So. 2d 1380 (Fla. 1988).
2
The affidavit for an arrest warrant alleged that Patterson committed an
aggravated assault with a firearm and an aggravated battery, and that he possessed a
firearm as a convicted felon.
2
Subsequently, Patterson filed a “Motion to Modify Sentence,” stating that he
denied any knowledge of the events referenced in the affidavit, and that the State never
filed charges against him for those events. That motion was summarily denied.
Patterson appeals the use of an affidavit to establish the new violation of the law. He
argues the affidavit did not amount to competent, substantial evidence that he failed to
comply with his plea agreement. See Neeld v. State, 977 So. 2d 740, 745 (Fla. 2d DCA
2008); Walker v. State, 599 So. 2d 233, 234 (Fla. 3d DCA 1992).
Yet Patterson neither objected to the use of the affidavit at sentencing nor filed a
motion to withdraw his plea. Because we find that this issue was not properly preserved
for appeal, we cannot consider the merits. Fla. R. App. P. 9.140(b)(2)(A)(ii)(a)-(d); see
also Rackley v. State, 755 So. 2d 833, 834-35 (Fla. 5th DCA 2000); Fisher v. State, 35
So. 3d 143, 143-44 (Fla. 2d DCA 2010). However, our affirmance is without prejudice to
Patterson to raise the issue in a timely motion pursuant to Florida Rule of Criminal
Procedure 3.850.
AFFIRMED.
PALMER and BERGER, JJ., concur.
3