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Coppinger v. State

Florida Court of Appeals, Fourth District

May 2, 2018

ROBERT COPPINGER, 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; Ernest A. Kollra, Judge; L.T. Case Nos. 09-11214CF10A, 09-20410CF10A and 11-2594CF10A.

          Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

          Klingensmith, J.

         Robert Coppinger was charged with violating his probation contrary to the terms of a substantial assistance agreement with the State. The trial court adjudicated him guilty of the violation, and sentenced him to concurrent prison terms on the charges in three separate cases that was the basis of his probation. He raises two issues on appeal. First, he claims the trial court lacked jurisdiction to revoke his probation and impose a sentence on the third degree felony charge carrying a maximum penalty of five years in prison. Second, he alleges that the trial court considered impermissible factors during resentencing. We decline to address the second issue, finding it without merit. However, we agree with Coppinger as to the first issue, and reverse his conviction as to the third degree felony.

         In April 2010, Coppinger pled no contest in one case to dealing in stolen property, a second degree felony punishable by a term of imprisonment not exceeding fifteen years; and grand theft of over $300, a third degree felony punishable by a term of imprisonment not exceeding five years. He also pled no contest in a second case to dealing in stolen property. The court withheld adjudication on all charges, and imposed concurrent three-year probationary terms on each count.

         In March 2011, Coppinger pled no contest to committing new criminal offenses, [1] and admitted violating his probation on the 2010 cases. At sentencing, the court withheld adjudication, but amended his probation to concurrent four-year probationary terms on the charges stemming from the two cases from 2010 and the charges arising from the new case. However, the trial court did not award Coppinger any credit for his prior probationary service for the 2010 cases.

         In July 2011, Coppinger's probation was reinstated after he admitted to violating his probation again by failing to undergo a drug/alcohol evaluation and submit to biweekly urinalysis tests.

         Two months later, Coppinger once more pled no contest to committing new criminal offenses, [2] and admitted to violating his probation. This time, the trial court not only reinstated the probation, but also modified it to include an additional six months of community control followed by four years of probation. Again, the trial court did not award Coppinger any credit for his prior probationary service.

         In September 2015, after Coppinger committed two technical violations of his probation, [3] he entered into a substantial assistance agreement with the State. The agreement explicitly set out the maximum penalties for each of his probationary charges. Coppinger agreed that the commission of any new criminal offense during the pendency of the agreement, including any traffic criminal offense, would be a violation of the agreement. He also acknowledged that if he violated any of the terms of the agreement, he would subject himself to the maximum penalties described. After entering an open plea to the new VOP charge, the trial court deferred sentencing for thirty days, and released him on his own recognizance so he could render the agreed-upon assistance.

         Two weeks later, Coppinger was arrested again, this time following a traffic stop for driving while his license was suspended. Having apparently exhausted the trial court's patience, the judge revoked Coppinger's release, and ordered him held without bond, thus "tolling" Coppinger's probation until sentencing. Following a hearing on his VOP, Coppinger was adjudicated guilty on the three 2010 charges and sentenced to concurrent maximum sentences of fifteen years for the two second degree felonies, and five years for the third degree felony.

         Coppinger argues that if the judge had properly given him credit for the time he had previously served on probation, then the trial court would have lacked jurisdiction to both adjudicate and sentence him on the third degree felony charge from 2010.

         "Whether a court has subject matter jurisdiction is a question of law reviewed de novo." Mobley v. State, 197 So.3d 572, 574 (Fla. 4th DCA 2016) (quoting Sanchez v. ...


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