Summary
holding that sub-subparagraph c. does not include defendants with more than one technical violation of probation
Summary of this case from Adams v. StateOpinion
No. 1D20-882
12-30-2020
Dennis Charles SCHMIDT II, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, Megan Long and Kacey Lacey, Assistant Public Defenders, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, Megan Long and Kacey Lacey, Assistant Public Defenders, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Daren L. Shippy, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Dennis Charles Schmidt II appeals his judgment and sentence after the trial court revoked his probation. He argues that after revoking probation, the trial court had to modify or continue his probation under section 948.06(2)(f), Florida Statutes (2019). But because Schmidt did not qualify for sentencing under the statute, we affirm.
Schmidt pleaded no contest to possession of methamphetamine. The trial court withheld adjudication and sentenced Schmidt to four years of probation. But two months after sentencing, Schmidt violated three conditions of his probation: (1) failing to report to the probation office, (2) changing his residence without consent of his probation officer, and (3) failing to successfully complete or remain in a rehabilitation program. The State then moved to revoke Schmidt's probation.
Before the revocation hearing began, Schmidt's counsel urged the trial court to sentence Schmidt under section 948.06(2)(f). Because this was Schmidt's first time violating probation, his three violations were low-risk technical violations, and he was a non-violent felony offender sentenced to probation, his counsel argued that Schmidt qualified for sentencing under the statute.
But the trial court found that Schmidt did not qualify because he violated three conditions of probation. The court found that a probationer charged with violating more than one condition of probation could not qualify for sentencing under the statute. Based on this finding, Schmidt admitted to violating probation and waived his right to an evidentiary hearing. But he preserved his right to appeal the trial court's ruling that he did not qualify for sentencing under section 948.06(2)(f). The court then revoked probation and sentenced Schmidt to eleven months and twentynine days in county jail. This timely appeal follows.
Schmidt argues that the trial court erred when it found that he did not qualify for sentencing under section 948.06(2)(f). We review questions involving statutory interpretation de novo. State v. Peraza , 259 So. 3d 728, 730 (Fla. 2018).
Section 948.06(2)(f) provides:
(f) ... the court shall modify or continue a probationary term upon finding a probationer in violation when any of the following applies:
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).5
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.
To qualify for sentencing under the statute, Schmidt had to meet all four conditions described in subsections a-d. See Owens v. State , 303 So. 3d 993, 996 (Fla. 1st DCA 2020) (holding that whether section 948.06(2)(f), Florida Statutes, applies to a defendant who committed an offense before the statute was amended, when imposing sentence for a violation of probation, a trial court is limited under subsection 948.06(2)(f)1. to modifying or continuing probation or imposing a sentence of up to 90 days in county jail only when a defendant "meet[s] all four conditions of subsection 948.06(2)(f)1.").
Schmidt satisfied the conditions described in subsections a, b, and d: he was on probation, he did not qualify as a violent felony offender of special concern, and the court had never found Schmidt in violation of his probation. The question is whether Schmidt, who had multiple low-risk technical violations, satisfied the condition described in subsection c—that "the violation is a low-risk technical violation."
To answer the question, we begin with the language of the statute. See Halifax Hosp. Med. Ctr. v. State , 278 So. 3d 545, 547 (Fla. 2019). A statute's plain language controls if the language is unambiguous and conveys a clear and definite meaning. Valleycrest Landscape Maint., Inc. v. State, Dept. of Revenue , 213 So. 3d 992, 995 (Fla. 1st DCA 2016). The language of section 948.06(2)(f) 1.c. is unambiguous. The statute provides that "[t]he violation is a low-risk technical violation , as defined in paragraph (9)(b)." The use of the noun "violation" along with the indefinite article "a" before the second mention of the word "violation" requires a reading of "violation" as a singular noun. A , MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2003) ("a" is "used as a function word before singular nouns"). The statute thus limits the probationers eligible for sentencing under the statute to probationers with only one technical violation. And so, we conclude that the plain language of the statute conveys a clear and definite meaning to exclude from its applications probationers who have more than one low-risk technical violation.
And when read in context with other provisions of the statute, our conclusion that the statute is limited to probationers with single violations finds additional support. See, e.g. , Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS § 24, at 167 (2012) (stating that when interpreting a legal text, courts should "consider the entire text, in view of its structure and of the physical and logical relation of its many parts"). Section 948.06(2)(f) 1.c. refers to paragraph 9(b) of the statute for the definition of the term "low-risk violation. " Paragraph (9)(b) in turn provides that "the term ‘low-risk violation,’ when committed by a probationer, means any of the following" and then enumerates eleven types of violations. The use of the singular noun in Paragraph (9)(b) supports our interpretation that section 948.06(2)(f) 1.c. pertains only to a single technical violation of probation.
In sum, we hold that the plain language of 948.06(2)(f)1.c. is clear and unambiguous and applies only to probationers with a single violation of probation. Because he had multiple violations, Schmidt did not qualify for sentencing under the statute. And so, the trial court did not err in revoking his probation and sentencing him to county jail. Schmidt's judgment and sentence are AFFIRMED.
Rowe, Winokur, and Nordby, JJ., concur.
Per Curiam.
ON MOTION FOR REHEARING
DENIED .
Rowe and Nordby, JJ., concur; Winokur, J., concurs with opinion.
Winokur, J., concurring.
I agree that we should deny rehearing. In his motion for rehearing, Schmidt claims that this Court resolved an "ambiguity" in section 948.06(2)(f) 1.c., Florida Statutes. Because the provision is ambiguous, Schmidt argues, we have an obligation under section 775.021(1), Florida Statutes, to interpret the statute in his favor. I disagree.
First, the existence of "ambiguity" does not end the inquiry. To the extent that section 775.021(1) expresses the rule of lenity, it is "a canon of last resort and only applies if the statute remains ambiguous after consulting traditional canons of statutory construction." Paul v. State , 129 So. 3d 1058, 1064 (Fla. 2013) (citing Kasischke v. State , 991 So. 2d 803, 814 (Fla. 2008) ). A finding of ambiguity does not necessarily require application of section 775.021(1).
Second, section 775.021(1), by its terms, does not apply to the statute under consideration. Section 775.021(1) reads as follows:
The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.
Section 775.021(1) was enacted in 1974 as part of the "Florida Criminal Code" and remains unchanged. Ch. 74-383, §§ 1 & 3, Laws of Fla. The Florida Criminal Code amended several criminal law provisions contained in chapters 775 and 776, and amended numerous statutes defining crimes.
Section 775.021(1) applies to "provisions of" the 1974 Florida Criminal Code, as well as "offenses defined by other statutes" (emphasis supplied). In other words, section 775.021(1) establishes a rule of interpretation for any statute created or amended in the Florida Criminal Code, or any statute that defines a criminal offense.
Offenses are generally described in Title XLVI of the Florida Statutes, entitled "Crimes." Chapter 948 is contained in Title XLVII, entitled "Criminal Procedure and Corrections." While not all offenses are contained in Title XLVI, an offense typically describes an act, and indicates that the act is a felony or misdemeanor, and that it may be punished, usually by the applicable sentencing statutes. See, e.g. , § 316.193, Fla. Stat. (criminalizing driving under the influence).
Chapter 948, Florida Statutes, entitled "Probation," existed in 1974 and included section 948.06, concerning violation of probation, as it does now. No part of Chapter 948 was amended in the Florida Criminal Code. Nor does Chapter 948 define any criminal offense. For these reasons, section 775.021(1) does not provide an interpretive rule that must be used to resolve section 948.06(2)(f) 1.c. issues. Nor, for that matter, does section 775.021(1) apply to interpretation of any statutory provision in Chapter 948.
Finally, to the extent that a rule of lenity exists in this state, section 775.021(1) provides its limits. The Florida Supreme Court has repeatedly noted that section 775.021(1) "codified" the rule of lenity. Elsewhere, the supreme court has described the rule of lenity as a "statutory directive." Kasischke , 991 So. 2d at 814. I take this to mean that the rule of lenity exists as an interpretive tool only so far as section 775.021(1) permits it. And because section 775.021(1) does not permit it here, it does not guide our interpretation in any way.
See, e.g., State v. Weeks , 202 So. 3d 1, 8 (Fla. 2016) ; Hopkins v. State , 105 So. 3d 470, 475 (Fla. 2012) ; Valdes v. State , 3 So. 3d 1067, 1072 (Fla. 2009) ; Kelso v. State , 961 So. 2d 277, 279 (Fla. 2007) (all noting that the rule of lenity is "codified" in section 775.021(1) ). See also Wiggins v. State , 253 So. 3d 1196, 1199 n.* (Fla. 1st DCA 2018) ; Vansmith v. State , 247 So. 3d 64, 67 (Fla. 1st DCA 2018) ; Ramsey v. State , 124 So. 3d 444, 446 (Fla. 1st DCA 2013) (same).