Rehearing Denied Dec. 29, 2011.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Narine N. Austin, West Palm Beach, for appellee.
In this case we are confronted with the issue of whether the trial court, which has terminated appellee's probation unsuccessfully, is required to sentence appellee to at least the minimum sentence the court would have originally imposed before placing appellee on probation. We find the trial court erred when it terminated appellee's probation and released him from custody instead of sentencing him to at least a three-year minimum mandatory sentence.
In June 2008, appellee was charged with conspiracy to traffic in cannabis in excess of twenty-five pounds. Pursuant to the plea agreement, appellee pled to five years' probation, and the state agreed to waive the three-year minimum mandatory sentence.
Six months later, appellee violated his probation, and the court reinstated it. In September 2009, appellee was again charged with a violation of probation. The probation officer recommended that appellee's " probation be revoked and his probation be terminated unsuccessfully."
The trial court conducted a hearing on appellee's violation of probation. The state was represented by an assistant state attorney instead of someone from the statewide prosecutor's office, which was the prosecution office of record. Due to the fact that an assistant statewide prosecutor was not present at the hearing, the assistant state attorney asked that the hearing be reset so that a representative from the Office of Statewide Prosecution could be present. The trial court went forward with the hearing and terminated appellee's probation unsuccessfully and released him from custody. Nothing in the record indicates that the trial court imposed any sentence, such as time served. The assistant state attorney objected to the trial court proceeding without the assistant statewide prosecutor, but did not object specifically to the court's sentence of unsuccessfully terminating appellee's probation without any additional term of incarceration.
On appeal, appellant contends that the trial court imposed an illegal sentence. The standard of review for the
legality of a criminal sentence is de novo. Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008). Although the state did not specifically object to sentencing appellee below the guidelines, where there is an illegal sentence, such as an unauthorized departure from the sentencing guidelines, and the error is apparent on the face of the record, a contemporaneous objection is not required to preserve the issue for appeal. Taylor v. State, 601 So.2d 540, 541 (Fla.1992). " The sole exception to the contemporaneous objection rule applies where the error is fundamental. For example, ‘ [i]llegal sentences necessarily constitute fundamental error, and may therefore be challenged for the first time on direct appeal.’ " State v. Calvert, 15 So.3d 946, 949 (Fla. 4th DCA 2009) (citations omitted).
The trial court erred by sentencing appellee to a sentence below the minimum mandatory in contravention of section 948.06(2)(b), Florida Statutes. That statute provides: " If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense ... and impose any sentence which it might have originally imposed before placing the probationer on probation." In this case, appellee had to be sentenced to a minimum mandatory three-year prison term. Only originally, as a result of a plea agreement and with the consent of the state, could appellee have received a sentence that waived the minimum mandatory term of incarceration. As a result of the unsuccessful termination of probation, the trial court was required to sentence appellee to the minimum mandatory sentence that could have been " originally imposed before placing the probationer on probation."
Further, the trial court also contravened section 921.0024(2), Florida Statutes, which generally requires that the trial court sentence the offender to no less than the lowest permissible sentence as calculated on the scoresheet, unless there is evidence that supports a valid downward departure. Significantly, there is no evidence in the record indicating that this was a downward departure or supporting a downward departure. Thus, where a " trial court imposes a sentence that is shorter than the required mandatory minimum sentence, ‘ the sentence is not within the limits prescribed by law and is properly viewed as an ‘ illegal’ sentence.' " State v. Strazdins, 890 So.2d 334, 335 (Fla. 2d DCA 2004) (quoting State v. R.F., 648 So.2d 293, 294 n. 1 (Fla. 3d DCA 1995)); see also State v. Scanes, 973 So.2d 659, 661 (Fla. 3d DCA 2008).
In conclusion, we find the trial court erred in sentencing appellee to a sentence below what was mandated by law, i.e., a three-year minimum mandatory. We ...