HARRIS

v.

STATE OF FLORIDA

Fla. 1st DCA | 2024-08-21

No. 2023-1788

Robinson, J., Thomas, B.L., J., Nordby, J., Tanenbaum, J.

2024 FL 10216 Florida District Court of Appeal, First District (2024)

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Holding

The appellate court affirmed the trial court's judgment because Harris did not properly raise the issue of an allegedly illegal sentence on appeal.

Headnotes

[1] A probationer's failure to report a change in address or residence without probation officer consent constitutes a low-risk technical violation under Florida Statutes sec…

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Key Quotes

“Despite the apparent impropriety of the trial court's revocation order and the ostensibly unauthorized prison sentence imposed as a result, there is nothing we can do in this direct appeal because Harris did not properly raise the issue.”
Tanenbaum, J., concurring opinion explaining why the court could not address the potentially illegal sentence despite recognizing its apparent impropriety.

Facts & Procedural History

Harris was on probation and violated condition three by changing his residence without his probation officer's consent. After a contested evidentiary …

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Topics

Sentencing Error Preservation Violent Felony Offender Of Special Concern Probation Revocation Fundamental Error

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Per_curiam

Per Curiam

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-1788 _____________________________

TERRANCE ANTON HARRIS,

Appellant,

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Escambia County. Coleman L. Robinson, Judge.

August 21, 2024

PER CURIAM.

AFFIRMED.

B.L. THOMAS and NORDBY, JJ., concur; TANENBAUM, J., concurs with opinion.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Though not raised by Harris in this appeal, the record reveals a potentially illegal sentence, one imposed by the trial court after improperly revoking his probation. Section 948.06(2)(f)1., Florida Statutes, requires (except in limited circumstances not applicable here) the trial court to “modify or continue a probationary term” if all the following apply: a. The term of supervision is probation. b. The probationer does not qualify as a violent felony offender of special concern, as defined in paragraph (8)(b). c. The violation is a low-risk technical violation, as defined in paragraph (9)(b). d. The court has not previously found the probationer in violation of his or her probation pursuant to a filed violation of probation affidavit during the current term of supervision. A probationer who has successfully completed sanctions through the alternative sanctioning program is eligible for mandatory modification or continuation of his or her probation. “Failure to report a change in address or other required information” is a “low-risk technical violation[].” § 948.06(9)(b)3., Fla. Stat. The probation officer averred in part in the violation affidavit that Harris had “absconded,” specifying though that it was condition three of the probation order Harris violated. Condition three required Harris to “remain in a specified place” and precluded him from changing his “residence or employment” or leaving the county where he resides “without first procuring the consent of [his probation] officer.” After a contested evidentiary hearing, the trial court violated Harris for failure to comply with condition three. It seems to me the violation was a low-risk one under the statutory definition, yet the trial court revoked Harris’s probation, imposing a five-year prison sentence rather than “modify[ing] or continu[ing]” the probation as required by section 948.06(2)(f)1.

Jessica J. Yeary, Public Defender, and Ross S. Haine II, Assistant Public Defender, for Appellant.

Ashley Moody, Attorney General, and Amanda A. Uwaibi, Assistant Attorney General, for Appellee.

Footnotes

2 TANENBAUM, J., concurring.

3 Despite the apparent impropriety of the trial court’s revocation order and the ostensibly unauthorized prison sentence imposed as a result, there is nothing we can do in this direct appeal because Harris did not properly raise the issue. See Hall v. State, 823 So. 2d 757, 763 (Fla. 2002) (finding where the appellant “made no argument” as to a certain issue in his initial brief, that issue was deemed abandoned); D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 880 (Fla. 2018) (“Claims of error not raised by an appellant in its initial brief are deemed abandoned.”); cf. State v. Dortch, 317 So. 3d 1074, 1081 (Fla. 2021) (describing that even if an error is fundamental, “a defendant has no constitutional due process right to the correction of unpreserved error”); id. at 1081–82 (explaining that “for sentencing errors, to raise even fundamental errors on appeal, defendants must first file a motion under rule 3.800(b)”). Whether Harris has another avenue by which to challenge his sentence possibly is a question for another day. Here, we must affirm on the arguments Harris did make. _____________________________

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Citator

Authorities Cited

Hall v. State, 823 So. 2d 757 (Fla. 2002)

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HARRIS v. STATE OF FLORIDA