THE STATE OF FLORIDA,

v.

VENTURA GUTIERREZ,

Third District Court of Appeal State of Florida

Opinion filed February 16, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-989 Lower Tribunal Nos. F19-7423, F19-1601 ________________

The State of Florida, Appellant,

vs.

Ventura Gutierrez, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carmen Cabarga, Judge.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Deborah Prager, Assistant Public Defender, for appellee.

Before EMAS, SCALES and HENDON, JJ.

EMAS, J.

2

The State appeals from the trial court’s sua sponte order dismissing an affidavit of violation of probation. For the reasons that follow, we reverse and remand for further proceedings.

In 2019, Ventura Gutierrez was charged in two separate cases with a total of four counts: two counts of grand theft, one count of burglary, and one count of resisting an officer without violence. In August 2019, he pleaded nolo contendere to the charges and the trial court withheld adjudication and placed Gutierrez on two years’ probation with special conditions.

In 2021, the State filed an affidavit of violation of probation, which was amended in March of 2021. The amended affidavit alleged Gutierrez violated his probation by failing to (1) pay the monthly cost of supervision; (2) pay restitution; (3) pay for drug testing fees; (4) complete a selfimprovement CORRP program (Court Options Recidivism Reduction Program; and (5) comply with his reporting requirements while on probation. The affidavit also alleged that, because Gutierrez was convicted¹ of the offense of second-degree burglary of an occupied dwelling, he qualified as

The case was placed on the trial court’s calendar for “report re: plea” on April 9, 2021. At that time, the State and Gutierrez’s defense counsel announced they had reached a negotiated plea for the alleged violations of probation: Gutierrez would admit to all five allegations in the amended probation violation affidavit; the court would modify Gutierrez’s probation by adding six months’ community control with a GPS monitor, followed by an

2 For example, pursuant to section 948.06(8)(d)-(e), the following mandatory requirements apply to violent felony offenders of special concern:

- If the alleged violation of probation is for something other than a failure to pay costs, fines, or restitution, a violent felony offender of special concern “shall remain in custody pending the resolution of the probation violation. . . .” - The court shall not dismiss the affidavit of probation violation against a violent felony offender of special concern “without holding a recorded violation-of-probation hearing at which both the state and the offender are represented.” (Emphasis added.) - If after conducting such hearing the trial court determines a violent felony offender of special concern has committed a violation of probation other than a failure to pay costs, fines, or restitution, the court “shall make written findings as to whether or not the violent felony offender of special concern poses a danger to the community.” - “If the court has found that a violent felony offender of special concern poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law.”

After the negotiated plea was announced, the defendant was sworn, and the trial court engaged him in a plea colloquy. Before completing the plea colloquy with Gutierrez, however, the trial court called the attorneys sidebar. There is no transcript of the discussion that took place at the sidebar conference with the court, but the break in the recorded proceedings lasted eleven minutes.

When the court and the parties went back on the record, the case was passed, and the remainder of the calendar was concluded. Upon returning to this case, the trial court posed several questions to the probation officer about Gutierrez’s alleged violations. That was followed by some discussion between the court and counsel for the State and defense regarding the nature of Gutierrez’s alleged violations, his current employment, and the proposed extension of supervision with electronic monitoring. Thereafter, and without taking any testimony or conducting a probation violation hearing, the trial court announced: Upon review of the affidavit and counsels’ arguments, as well as [the probation officer’s] information provided, this Court does find that the violations are not material. The violations are technical in nature. This Court does also make a finding that Mr. Gutierrez, based on the facts that have been presented, is not a danger to the public.

Under these circumstances, we must return the parties to the position they occupied immediately before the trial court’s error. See generally State v. Wilson, 658 So. 2d 521, 523 (Fla. 1995). That position would be the point at which the parties appeared before the trial court and announced they had reached a negotiated plea. On remand, should the State and defense stand by the previously negotiated plea,³ they may present it once again to the trial

3 Generally speaking, until a plea offer is formally accepted by the trial court, the State or defendant is free to withdraw the offer. See Fla. R. Crim. P. 3.172(g) (providing: “No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.”); Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (noting: “Florida Rule of Criminal Procedure 3.172(g) authorizes the prosecutor to withdraw a plea offer at any time before it is formally accepted by the trial judge.”)