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Fournier v. State

Florida Court of Appeals, Fourth District

April 18, 2018

ROLAND FOURNIER, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dennis D. Bailey, Judge; L.T. Case Nos. 13-004126-CF10A, 15-005183-CF10A.

          Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.

          Conner, J.

         Appellant Roland Fournier appeals the trial court's order revoking his probation in one case, an order determining the amount of restitution in another case, and the orders imposing public defender fees in both cases. Additionally, Appellant appeals a hearsay ruling as to one ground alleged for revoking his probation and the sufficiency of evidence pertaining to another ground alleged for revoking his probation. We affirm, without discussion, the trial court's evidentiary rulings on the conditions of probation violated. However, as properly conceded by the State on appeal, we agree the trial court erred in failing to enter an order determining which conditions of probation were violated, determining the amount of restitution, and imposing public defender fees exceeding the minimum amount allowed by statute. We therefore affirm in part, reverse in part, and remand for further proceedings.

         Background

         Appellant was charged with burglary of a dwelling and petit theft. After pleading no contest to the charges, Appellant was sentenced to two years of drug offender probation with $300 in restitution for the burglary charge and one day of probation for petit theft.

         Appellant's probation officer filed an affidavit of violation of probation ("VOP") alleging, among other things, that Appellant tested positive for morphine and cannabis as shown by an analysis of a urine drop obtained from Appellant a few weeks earlier. Subsequently, Appellant was charged with new offenses of uttering a forged instrument and petit theft.

         Appellant's probation officer filed an amended affidavit of VOP including additional allegations, among which was that Appellant had violated his probation by changing his residence without first procuring her consent. It does not appear the new law violations relating to the uttering a forged instrument and petit theft charges were included in the amended VOP affidavit.

         A VOP hearing was conducted. The trial court determined that Appellant had violated his probation with respect to the positive drug test. The trial court also found Appellant violated his probation by moving from his residence without permission. Upon determining that Appellant violated probation, the trial court revoked Appellant's probation and sentenced him to five years in prison with credit for time served for the burglary. No written order was entered stating the trial court's findings regarding what condition or conditions of probation were violated.

         After the VOP proceeding, Appellant entered no contest pleas to the new charges of uttering a forged instrument and petit theft. For those charges, he was sentenced to five years in prison concurrent to the burglary sentence. The State moved for $850 of restitution for the uttering charge, to which defense counsel objected. The trial court orally ruled that it would order restitution, but reserved as to the amount. The trial court noted that if the parties could not reach an agreement as to the amount, there would be a hearing. Despite this oral pronouncement, however, the trial court entered a written restitution order for $850. The trial court also entered an order imposing a $150 public defender fee for the burglary case and a $300 public defender fee for the uttering case.

         Appellant filed the instant appeal as to both the burglary and uttering cases. During the pendency of this appeal, Appellant filed a rule 3.800(b)(2) motion to correct sentencing error in the uttering case, seeking to strike the written order determining restitution in the amount of $850, on the basis that the trial court orally pronounced that it would reserve ruling as to the amount of restitution and there was no subsequent stipulation or hearing on the amount. It does not appear the trial court ruled on the rule 3.800(b)(2) motion. Appellant also filed a rule 3.800(b)(2) motion to correct sentencing error in the burglary case, requesting that the trial court enter a written order setting forth the specific conditions of probation violated to justify revocation of his probation. The record does not reflect that the second motion was ruled upon either. Finally, Appellant filed a third rule 3.800(b)(2) motion to correct sentencing error in both cases regarding the public defender fees imposed and seeking to reduce the fees to the statutory minimum amount of $100 or to provide notice and an opportunity to be heard if the court considered imposing a fee in excess of the statutory minimum. As with the other rule 3.800(b)(2) motions, it does not appear the trial court entered a ruling on the third motion.

         Appellate ...


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