Arraignment to Arrest Warrant: Sumter County Style

For the county court judges that hear thousands of misdemeanor cases each year the local customs and procedures vary widely. Local attorneys quickly become accustomed to the particular procedures and requirements of the judge.

But what happens when a local custom in a criminal courtroom violates the rights of the individuals that appear in that courtroom? What happens when a local custom becomes an illegal sentencing scheme? Unless the public defender or private criminal defense attorneys raise the appropriate objections and appeal unfavorable rulings then local customs that violate Florida law can take hold.

This blog post explores what should happen when a person is sitting in jail after being taken into custody under a type of arrest warrant called an "Order of Commitment" after a suspended sentence. This blog post discusses the legality of that sentencing scheme which is unique to the misdemeanor court in Bushnell, Sumter County, FL.

In many of these cases, the quickest way to gain your clients release might be to file a Petition for Writ of Habeas Corpus filed with the 5th District Court of Appeals in Daytona, FL. No filing fee is required and the District Courts will typically answer the Petition for Writ of Habeas Corpus within a few business days. Alternatively, the Petition for Writ of Habeas Corpus could be filed with the Circuit Court in Sumter County which has concurrent jurisdiction. If the person is not yet in custody, a Petition to Correct an Illegal Sentence under Rule 3.800(a) could be filed with the County Court Judge in Bushnell, Sumter County, Florida.

I've been told that local attorneys often file a "Motion to Modify Sentence" with the trial court after the individual is in custody in order to show the trial court that the individual is now in compliance with paying the fines and costs or other conditions. The relief requested in the "Motion to Modify Sentence" is asking the trial court to suspend the remainder of jail sentence conditioned upon defendant showing proof of compliance. This local custom does not address the main issue which is whether the sentence was legally imposed in the first place. Additionally, filing a Petition for Writ of Habeas Corpus may secure the clients release faster. Filing a motion to correct the illegal sentence and vacate the "order of commitment" with the trial court may even correct the problem before the client is ever arrested and taken into custody.      

Arraignment, Sentencing, and Arrest Warrants: Sumter County Style

Let's take a look at a questionable local custom in Bushnell, Sumter County. The typical situation involves a person charged with a misdemeanor such as driving while license suspended, or driving with no valid license or motorcycle endorsement. Other commonly charged misdemeanors can including domestic violence battery, possession of marijuana, possession of drug paraphernalia, trespass or petit theft. Many of these cases involves second degree misdemeanors which are punishable by up to 60 days in jail and a five hundred dollar fine.

At arraignment in Bushnell, Sumter County, FL, the person accused of the crime might waive their right to counsel without fully understanding the consequences of the plea.

Consider this hypothetical. A person is charged with driving while license suspended in Bushnell, Sumter County. The individual goes to arraignment without an attorney. The public defender is not assigned to the case and the individual has not hired a private criminal defense attorney. The individual decides to waive their right to counsel so the case can be resolved that day. The individual enters a plea of "guilty" or "no contest". The misdemeanor criminal court in Bushnell, Sumter County, FL, accepts the plea and does the following:

1. Adjudicates the individual guilty of the offense (so they will never be eligible to seal or expunge any criminal record, including the most recent arrest);
2. Sentences the person to 59 days in the Sumter County jail (which is the maximum sentence allowed by law for a second degree misdemeanor);
3. The court announces that it will "suspend" the jail sentence; 
4. The court also announces that it will give the person a certain amount of time to pay court costs and fines, take an advance driver improvement course, or show proof of obtaining a valid license or motorcycle endorsement;  
5. The written order vaguely refers to the court's ability to later impose "commitment" (which is really a jail sentence) if the person does not comply with some condition within 30, 60 or 90 days;
6. Although not announced in open court, the written disposition indicates that the court then released the person ROR to show proof of a valid driver's license, completion of the ADI course, and/or payment of the fines and court costs;
7. The individual is then required by the Sumter County Clerk's Office to sign a "Deferred Payment Plan" before they leave the courtroom;
8. If the person does not obtain a driver's license, take the ADI course, or pay the fines and court costs within the allotted time, then the clerk's office in Bushnell, FL, will complete a "certificate" which alleges which court ordered requirements were not met (sometimes called a "default");
9. The judge in Bushnell for Sumter County then signs an "Order of Commitment" which is a warrant for the individuals arrest which authorizes any sheriff in the State of Florida to arrest the individual and hold them until they are transported to the Sumter County jail; 
10. A search of the FDLE's website for the warrant will show the offense as "Obstructing Court Order" or "Violation of Court Order" from the Sumter County Sheriff's Office as the reporting agency.
11. Because the sentencing scheme is so unusual and the court's oral pronouncement is so confusing many people leave the courtroom without understanding that they can be arrested for not completing the conditions mentioned by the court. 

What Might Judge Thomas D. Skidmore Say at Sentencing?

Consider this example from 2004:

"I'm going to accept your plea. I'm going to withhold adjudication at this point. On possession of marijuana, the fine is three hundred dollars plus the court costs. And on the possession of paraphernalia, it's also a withhold... and a hundred and fifty, costs. And I want you to take care of those fines in the next thirty days and I'll suspend a twenty-nine day sentence. Everything will run concurrent.

Consider a more recent example from January of 2011:

"I'm going to accept your plea and adjudge you guilty and the fine is one-fifty plus Court costs. And I'm going to give you ninety days to take care of that. I'm going to give you sixty days to get your license. Little more than I usually do, 'cause it's out of state. And I'm going to suspend a twenty-nine day sentence, okay?

It seems to me that the oral pronouncement would not put a person on notice that the court would issue an arrest warrant to lock them up in the Sumter County Detention Center Jail for without any further hearing if they do not pay the money or show proof of getting a driver's license within the allotted time.

The individual may not even know they failed to comply with a condition under after the "Order of Commitment" was issued. The individual researches the term "order of commitment" and finds very little information about this unusual sentencing procedure used in the misdemeanor court in Bushnell, Sumter County, Florida.

After calling local criminal defense attorneys in Bushnell, FL, and the Sumter County Clerk's Office, the individual finds out that the court will not even entertain a "motion to modify" the sentence until after the person is sitting in the Sumter County Jail. This sentencing scheme is problematic for several reasons.

The Oral Pronouncement Controls Not What is Written in the Sentencing Order 

In the hypothetical the oral pronouncement varies from the written disposition order which is pre-printed. The clerk that is in the courtroom during sentencing will write in the sentence and hand it to the judge to sign. The person being sentenced may or may not receive a copy of the written disposition before leaving the courtroom. Since at least 2004, the written disposition form would vary from the oral pronouncement because it will say: "ROR ___ days to comply or issue commitment ____ days."

The pre-printed disposition form was recently changed to say: "[  ] Defendant is ordered to immediately report to the Clerk of Court to setup and comply with a payment agreement or determine indigency[.] Failure to immediately report may result in an Order to Show Cause being issued[.]

The second change to the form is that it now reads: "[ ] Execution of this sentence shall be suspended pursuant to Rule 3.810 F.R.CR.P., pending compliance by Defendant. Upon certification by the Clerk of this Court that the Defendant has failed to comply with any provisions of this sentence, this court will issue a commitment of the Defendant to the Sheriff to serve the period, of days herein ordered without further notice to the Defendant."

Although changing the form is at least an attempt to articulate the unusual sentencing scheme in Sumter County which was previously a complete mystery to many of those individual who were locked up with a 29 day "Order of Commitment," the new form doesn't change the underlying problem. Additionally, nothing in Florida Rule of Criminal Procedure 3.810 would allow for this type of sentencing scheme.

Regardless, the written order varies from the oral pronouncement. When a variance exists between a written order and an oral pronouncement, the oral pronouncement controls. Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003). If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement. Id.; see also Williams v. State, 957 So. 2d 600, 603 (Fla. 2007) (“[A] court's oral pronouncement of a sentence controls over the written sentencing document …. When the written document results in a sentence that is more severe than the sentence announced in court, this Court has considered it a potential violation of the constitutional protection against double jeopardy …. [W]e have restricted the authority of a trial court to enter a conflicting written sentence in this manner. State v. Jones, 753 So. 2d 1276, 1277 n.2 (Fla. 2000). Accordingly, no court has the authority to enter such a sentence, since the oral pronouncement controls and constitutes the legal sentence imposed. For this reason, we agree … that a motion alleging a discrepancy between the oral and written sentences should be cognizable in a rule 3.800(a) proceeding.”).

Filing a Petition for Writ of Habeas Corpus

The writ of habeas corpus remains available for the rare case in which a prisoner has been provided no adequate or effective way to test the legality of his or her detention despite the procedures for post-conviction relief motions. Quarles v. State, 56 So.3d 857 (1st DCA 2011). The Circuit Court, District Court, district and Supreme Courts have concurrent jurisdiction in habeas corpus. Florida Parole and Probation Commission v. Baker, 346 So. 2d 640 (2nd DCA 1977). Although if the habeas is filed in both the Circuit Court and the District Court, the District Court may defer ruling until the Circuit Court has a reasonable amount of time to issue a ruling.

Suspended Sentence Unconnected with Probation or Community Control is Not Allowed

It is well-settled that a sentence imposing a term of imprisonment which is then suspended and not connected with probation or community control is illegal. See Pinardi v. State, 617 So.2d 371 (5th DCA 1993); Bell v. State, 651 So.2d 237 (5th DCA 1996).

Not a Valid Sentencing Option

The sentencing scheme used in this case does not comply with any of the options available under Florida law. In Poore v. State, 531 So.2d 161, 164-165 (Fla., 1988), the court stated:

"Thus, we conclude that a judge has five basic sentencing alternatives in Florida:

1. a period of confinement;
2. a “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion; 
3. a “probationary split sentence” consisting of a period of confinement, none of which is suspended, followed by a period of probation; 
4. a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and 
5. straight probation."

Suspended Sentences without Probation or Community Control are Not Allowed in Florida

The power to suspend or withhold the imposition of sentence upon a convicted criminal can be exercised by the trial judge only as an incident to probation or community control under the provisions of Chapter 948, Florida Statute. State v. Galazz, 2 So.3d 1083 (Fla. Dist. Ct. App. 3d Dist. 2009). If the court imposes a suspended sentence not connected to probation or community control then the sentence is an illegal sentence, beyond the court’s jurisdiction and a denial of due process of law. Id. 

Double Jeopardy Violated When Judge Signs "Order of Commitment"

Double jeopardy protection is triggered that precludes the Court from enhancing the defendant’s sentence by signing an “Order of Commitment” for an alleged breach of what can best be described as a strange hybrid between a furlough agreement, suspended sentence or deferred sentence.

It can be argued that the “Order of Commitment” is illegal because it violates the Fifth Amendment of the United States Constitution which reads in relevant part: “[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause is applicable to the state of Florida through incorporation by the Fourteenth Amendment.

One of the essential protections included in the double jeopardy principle is the prohibition against being punished multiple times for the same offense. Jeopardy attaches when the sentence was imposed, after which the double jeopardy clause protects the defendant from receiving a punishment greater than the sentence already imposed. See Troupe v. Rowe, 283 So. 2d 857, 860 (Fla. 1973)(“Jeopardy had attached…and the sentence which had been imposed could not thereafter be increased…”).

Ingram v. State, 842 So. 2d 954 (Fla. Dist. Ct. App. 4th Dist. 2003) is an example of a situation in which a trial judge inadvertently “imposed a sentence” at a plea conference, and thereby triggered double jeopardy protection that precluded the court from enhancing the defendant’s sentence for breaching a furlough agreement. The Fourth District reversed the enhanced sentences and remanded for imposition of the sentence originally imposed finding that “the court’s oral pronouncement of the sentence at the plea conference necessitates the finding that sentence was imposed at the plea conference.” Id.

Due Process Violated

Other courts attempt to retain jurisdiction to make sure that the person complies with certain conditions by putting the person on probation. If the individual had been placed on probation, then he would have been entitled to notice and a hearing regarding any alleged violation. A probation officer would have explained the terms and conditions of that probation. The person would be entitled to present a defense if the failure to pay or complete other conditions was not willful or substantial. The unusual sentencing scheme has the effect of avoiding basic due process requirements.

Even if you view the sentencing scheme as similar to indirect contempt it would still require a show cause hearing and an opportunity to be heard. Do criminal defense attorneys for Bushnell, Sumter County, FL, have an obligation to insist that the courts follow the rule of law?

So what do you think? Does Florida law allow for this unusual sentencing scheme?