CHARLIE DENNIS ALTMAN v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed April 12, 2023.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D21-1184; 3D21-1185 & 3D21-1186
Lower Tribunal Nos. 18-443-A-K; 18-100-A-K; 18-793-A-K
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Charlie Dennis Altman,
Appellant,
vs.
The State of Florida,
Appellee.
Appeals from the Circuit Court for Monroe County, Mark Wilson,
Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez,
Assistant Attorney General, for appellee.
Before FERNANDEZ, C.J., and LOGUE and HENDON, JJ.
LOGUE, J.
Charlie Dennis Altman appeals the trial court’s order revoking
probation and imposing sentence. We affirm because there is competent
substantial evidence in the record to support the trial court’s determination
that Altman willfully and substantially violated the conditions of his probation
and, therefore, the trial court did not abuse its discretion in revoking Altman’s
probation. Furthermore, the trial court did not consider uncharged conduct
as a basis for revoking Altman’s probation, and it did not err in denying
Altman’s request to be resentenced by a different judge.
Factual and Procedural History
Altman was charged with aggravated stalking in violation of section
784.048 (case no. 2018-CF-100-AK); grand theft in violation of sections
812.014(1) and 812.014(2)(c) (case no. 2018-CF-443-AK); organized
scheme to defraud in violation of section 817.034, and four counts of cashing
or depositing item with intent to defraud in violation of section 832.05(3)
(case no. 2018-CF-793-AK). On October 10, 2019, Altman entered a plea of
nolo contendere pursuant to a negotiated plea agreement. Altman was
adjudicated guilty in all three cases and placed on five years’ probation, with
the probationary periods to run concurrently.
The plea agreement required Altman to leave and remain out of
Monroe County from October 12, 2019, at 12:00 p.m. until the successful
completion of his probation. During sentencing, the trial court discussed this
condition with the prosecutor, defense counsel, and Altman and it was
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indicated that Altman would be flying out of Monroe County after checking in
with the local probation office following his release from jail. Altman stated
the flight left the following day. Altman contends it was understood by all that
he would be flying to his family home in South Carolina, but this was never
expressed during the sentencing hearing, nor was it discussed whether
Altman would continue to be supervised by Monroe County, whether his
supervision would be transferred to South Carolina, or whether he could
reside in South Carolina pending any potential transfer.
On November 15, 2019, an affidavit of violation of probation was filed
alleging that Altman violated his probation by leaving his county of residence
without the consent of the probation officer. The affidavit alleged that Altman
left Palm Beach County his county of residence, without the consent of the
probation officer and entered Horry County, South Carolina on November
10, 2019. The violation report stated that Altman contacted his probation
officer on November 12, 2019, and advised he had to leave his apartment
because his roommate got into a fight. Altman advised the probation officer
he was in South Carolina and probation officer told him he could not be out
of state without permission. The probation officer instructed him to return to
Florida and report to the probation office by November 13, 2019, at 2:30 p.m.
Altman reported as instructed.
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The probation officer noted in the violation report that Altman wanted
to move to South Carolina to be with his mother. The probation officer
reported that she was in the process of “submitting the transfer request at
this time” and recommended no further action. The probation officer noted,
however, that if Altman violated supervision again for any reason, she would
submit a full violation recommending a warrant be issued. The trial court
nevertheless issued a warrant based on this initial violation.
On January 21, 2020, an amended affidavit of violation of probation
was filed. The amended affidavit alleged that Altman violated probation a
second time by changing his residence without the consent of the probation
officer. The affidavit explained that on January 9, 2020, the probation officer
learned that Altman moved from his last known place of residence in Palm
Beach County on or about December 9, 2019, without the consent of the
probation officer and that his whereabouts were unknown. An addendum to
the prior violation report explained that on January 8, 2020, Altman’s
roommate advised officers serving his warrant that Altman went to South
Carolina about one month earlier. The addendum noted Altman’s
whereabouts were unknown and listed his location as “Absconder.”
This addendum did not indicate that the probation office was submitting
the transfer request but rather stated that “[o]n 11/22/2019, Supervisor
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Wright spoke with the offender regarding transferring to South Carolina, she
instructed him to come in the following Wednesday at 10:00 a.m. to fill out
the application to transfer, the offender never showed up.” The addendum
also stated that the probation officer spoke with Altman on December 16,
2019 and instructed him to report for the month and he did not show up. The
probation officer attempted to call Altman, but his phone was disconnected,
and she received no answer when she tried to reach Altman’s mother. The
probation officer recommended Altman’s probation be revoked. The trial
court issued an amended warrant reflecting this second violation on
February 4, 2020 and revoked the prior warrant.
On February 15, 2021, a second amended affidavit of violation of
probation was filed adding a third violation. The affidavit alleged Altman
violated his probation by leaving his county of residence without the consent
of the probation officer because he left Palm Beach County without the
consent of the probation officer and entered Broward County as evidenced
by his arrest in Broward County on February 8, 2021, pursuant to the
February 4th warrant. The probation officer once again recommended
Altman’s probation be revoked.
A probation violation hearing was held on April 29, 2021, and Altman
admitted he violated his probation as alleged in the second amended
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affidavit. Altman explained that when he was placed on probation following
his plea, he reported to the local probation office as instructed and told the
probation officer that he wanted his supervision transferred to South
Carolina. The Monroe County probation officer told him that he could transfer
supervision within Florida, based on the trial court’s order that he leave
Monroe County, and then request a transfer to South Carolina. Once in Palm
Beach County, Altman requested this transfer. The Palm Beach County
probation officer told Altman she would request the transfer but that it would
not be done immediately.
Altman then alleged that he stayed with his friend in Palm Beach
County until one weekend when some illegal activity occurred. Not wanting
to violate his probation and unable to contact the probation office because it
was the weekend, Altman alleged he flew to his mother’s house in South
Carolina. Altman called his probation officer after arriving in South Carolina
and advised her of the situation. The probation officer told Altman this was a
violation and instructed him to return to Florida and report to her office the
following day. Altman complied and said the probation officer told him to stay
in a hotel for a night or two while she put in a request to transfer his
supervision to South Carolina. Altman stated the probation officer never told
him he could not leave Florida again after he completed the paperwork for
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the transfer, so he returned to South Carolina. Once in South Carolina,
Altman contacted the local probation office, but it advised they had not
received any transfer paperwork.
Altman remained in South Carolina awaiting the processing of his
transfer paperwork. Then, in February of 2020, Altman learned of the
February 4th warrant. Altman stated that he reached out to his prior attorney,
the probation office in Key West, the prosecutor, and sought new counsel to
get the violation resolved. He alleged that the pandemic and resulting
shutdowns in March 2020 thwarted his attempts to resolve the violation. He
was ultimately arrested in Broward County in February 2021 on the
outstanding warrant. Altman alleged he was back in Florida to turn himself in
when he was arrested.
Altman apologized to the trial court and explained that he was trying
his best to comply with the order to leave Monroe County and keep everyone
notified of his whereabouts. Defense counsel argued that Altman committed
three low-risk technical violations that did not warrant a revocation and
lengthy prison sentence. Counsel noted that Altman did not commit any new
crimes while on probation and despite Altman perhaps not taking the
appropriate steps to relocate to South Carolina, “at some point he did contact
probation and tell them where he was.” Counsel asked the court to reinstate
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his probation so he could return to South Carolina. At a sidebar, defense
counsel also advised the court that Altman was a cooperating witness in a
separate murder case and argued that Altman’s cooperation with the State
should weigh in favor of reinstating his probation. The State asked the trial
court to revoke Altman’s probation and sentence him to the bottom of the
guidelines, 62.625 months.
The trial court accepted Altman’s admissions and found he willfully and
materially violated the terms of his probation, characterizing Altman’s actions
as absconding over the defense’s objection that absconding was a separate
violation not listed in the violation affidavit. The trial court further stated it did
not consider this a technical violation, revoked Altman’s probation, and
sentenced him to concurrent 62.625-month terms.
As the hearing was wrapping up, the trial court heard Altman say
“[g]ood luck to you, bitch” as he walked away from the camera. 1 The trial
court then noted that it had not called the next case and asked why it should
not impose consecutive sentences based on what just occurred. Defense
counsel argued the sentence imposed was more than sufficient, and both
defense counsel and the prosecutor acknowledged they did not hear
Altman’s comment.
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Altman appeared in court via live video from the Key West Jail.
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The trial court then asked deputies to bring Altman back and ordered
that his sentences run consecutively. In doing so, the judge noted that “I
haven’t called the next case and so we haven’t moved on and so I, upon
further consideration, think that the sentences in your case should be served
consecutively rather than concurrently.” Defense counsel objected, arguing
that a proper remedy would have been to hold Altman in contempt “rather
than . . . what I would consider a vindictive sentence enhancement based on
the displeasure of the Court to the defendant’s comments.” In response, the
judge stated that Altman’s conduct “suggests . . . that the sentence imposed
was inadequate in order to dissuade him from criminal activity in the future.”
On May 13, 2021, the trial court issued an order revoking Altman’s probation.
Defense counsel then filed a motion to correct sentencing error
pursuant to Florida Rule of Criminal Procedure 3.800(b)(1). The motion
argued Altman should be resentenced by a different judge because the
judge’s actions in ordering that Altman serve his sentences consecutively
instead of concurrently resulted in a vindictive sentence and violated double
jeopardy. The motion also argued that the trial court incorrectly considered
uncharged conduct, i.e., absconding, in revoking Altman’s probation. The
trial court never ruled on the motion. A notice of appeal was timely filed.
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After the notice of appeal was filed, Altman filed another motion to
correct sentencing error pursuant to Florida Rule of Criminal Procedure
3.800(b)(2). That motion argued that Altman be resentenced because the
prior record section of the sentencing scoresheet relied upon by the trial court
at the probation violation hearing was incorrectly calculated. The motion also
asked that Altman be resentenced by a different judge because he feared
the trial judge would not be fair given the judge tripled the original sentence.
The trial court granted the motion in part and ordered that Altman be
sentenced pursuant to a properly calculated scoresheet but denied the
request for resentencing by a different judge. At resentencing, the parties
agreed that the lowest permissible sentence under a correctly calculated
scoresheet was approximately 43.5 months. Defense counsel argued as
mitigating evidence that since Altman’s last sentencing hearing he testified
for the State and helped the State secure a conviction. The defense then
argued that resentencing Altman to a lengthy prison term was excessive
given the technical nature of the violations and asked the trial court to
consider some form of reinstatement or at least run his sentences
concurrently “as was contemplated by the way these cases were originally
resolved.” The State asked the trial court to resentence Altman to sixty
months.
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Altman then addressed the court and apologized for what happened at
his previous hearing. Altman again explained that he believed he was not
only permitted to go to South Carolina, but also required to do so based on
the trial court’s order that he leave Monroe County. After hearing from
counsel and Altman, the judge stated, “I don’t want to leave anyone with the
impression that, you know, I feel as though I’m bound by what I did last time,
because I’m not.” The judge credited Altman for testifying for the State and
helping secure a conviction and resentenced Altman to consecutive 45-
month terms in each case. Defense counsel asked the trial court to
reconsider the imposition of consecutive sentences, arguing that the trial
court carried over the offense it felt from its perceived slight at the prior
sentencing hearing. The judge responded, “what happened last time is
neither here nor there,” “[t]his is a de novo sentencing proceeding,” and that
he gave the case “a great deal of consideration.”
Analysis
This Court reviews a trial court’s revocation of probation for abuse of
discretion. Towns v. State, 259 So. 3d 291, 293 (Fla. 3d DCA 2018). We
review the trial court’s finding of a willful and substantial violation to
determine whether it is supported by competent substantial evidence. Id.11
Altman argues the trial court abused its discretion in revoking his
probation because he committed only technical violations, did not commit
any new crimes, and made a good faith effort to comply with the conditions
of his probation. Altman further contends the trial court erred in considering
uncharged conduct as a basis for revoking his probation and in denying his
request to be resentenced in front of a different judge.
We find that the record contains competent substantial evidence to
support the trial court’s finding that Altman willfully and substantially violated
his probation by leaving his county of residence and changing his residence
without first procuring the consent of his probation officer. Altman admitted
violating on three separate occasions. His first violation occurred only a
month into his probation when he left for South Carolina. His probation officer
advised him this was a violation and instructed him to return. Altman
complied and returned the next day. Had this been Altman’s only violation,
this matter might be like Carter v. State, 659 So. 2d 453 (Fla. 4th DCA 1995),
the Fourth District decision on which Altman relies. See id. at 454 (noting the
affidavit alleged only a single violation concerning the unauthorized move
from Alabama and not a reporting violation upon defendant's return to
Florida).
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However, Altman admitted he returned to South Carolina three days
after his first violation (which, again, occurred only a month into his
probationary term) and stayed there for over a year, even after learning that
there was a warrant out for his arrest for violating his probation by returning
to South Carolina without the consent of his probation officer. Altman alleged
at the probation violation hearing that upon returning to Florida after his first
violation, his probation officer told him the transfer request was put in and
that he “filled out all of the paperwork” for the transfer. He alleged that the
probation officer never told him that he could not leave Florida again after he
filled out the paperwork for the transfer.
This is, however, where the record becomes at odds with Altman’s
version of events. The amended affidavit of violation of probation, completed
after Altman’s second violation for returning to South Carolina, indicates that
the probation officer’s supervisor spoke with Altman on November 22, 2019,
regarding the transfer to South Carolina and instructed him to come in the
following Wednesday at 10:00 a.m. to fill out the transfer application, but
Altman never showed up. The amended affidavit further provides that the
probation officer spoke with Altman on December 16, 2019 and instructed
him to report for the month but again, he never showed up. Detectives
attempting to serve the arrest warrant on Altman on January 8, 2020, learned
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from his friend that Altman returned to South Carolina. The probation officer
attempted to contact Altman on January 17, 2020, without success as his
phone was disconnected and she received no response from Altman’s
mother. These portions of the record contradict Altman’s claim that he filled
out the transfer paperwork and believed he was free to return to South
Carolina.
Furthermore, Altman knew of the outstanding arrest warrant for a year
and never attempted to turn himself in. While he alleged at the violation
hearing that he was on his way to turn himself in when he was arrested, he
was picked up in Broward County, not in Key West. Altman also faults the
pandemic, but COVID-19 related lockdowns did not begin until March 2020,
while Altman left for South Carolina a second time around late November or
early December of 2019 and learned of the outstanding arrest warrant in
February 2020, all before the pandemic became an issue. Moreover, as the
trial court noted at the violation hearing, the courts were not shut down during
this time.
Based on the foregoing, there is competent substantial evidence in the
record supporting the trial court’s finding of a willful and substantial violation
of the Order of Probation.
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As to Altman’s contention that the trial court considered uncharged
conduct as a basis for revoking his probation, this argument is without merit.
The record reflects the trial court considered only the conduct charged in the
second amended affidavit of violation of probation. Specifically, that Altman
left his county of residence twice and changed his residence to South
Carolina all without first procuring the consent of his probation officer. While
the trial court early in the violation hearing characterized Altman’s conduct
as absconding, the fact remains that the only actual conduct relied on by the
trial court in finding a willful and substantial violation was that specifically
provided in the second amended affidavit.
Altman’s reliance on the First District’s decision in Perkins v. State, 842
So. 2d 275 (Fla. 1st DCA 2003), is misplaced because the First District did
not reverse in that instance based on the trial court’s characterization of the
defendant’s actions as absconding, despite that language not being used in
the violation affidavit. Rather, the court reversed because the trial court
revoked probation based on a different time period than that contained in the
violation affidavit. Id. at 277-78. Here, in contrast, the trial court relied on the
specific conduct alleged in the second amended affidavit.
Finally, Altman contends the trial court erred in denying his request to
be resentenced in front of a different judge. Altman argues that the trial
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court’s decision to resentence him to consecutive terms indicated the trial
judge was predisposed to run Altman’s sentences consecutively and was
biased against him based on Altman’s comment during his first violation
hearing. However, Altman’s arguments disregard the fact that the trial court
considered Altman’s mitigation evidence in reducing his sentence to 45-
month terms. While the trial court still ordered these terms to run
consecutively rather than concurrently, the trial court stated throughout the
hearing that it was not under “the impression that, you know, I feel as though
I’m bound by what I did last time, because I’m not”; “what happened last time
is neither here nor there[;]” “[t]his is a de novo sentencing proceeding[;]” and
that he had given the case “a great deal of consideration.” The trial court was
within its discretion to resentence Altman to consecutive terms, and the trial
court’s comments during resentencing indicate it gave due consideration to
this issue and did not feel compelled or bound to impose the same sentence
based on what occurred during the first violation hearing.
Accordingly, we affirm the trial court’s revocation of probation and
imposition of sentence in all respects.
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