Anthony Frazier v. The State of Florida

• Court: District Court of Appeal of Florida
• Decided: February 14, 2024
• Docket: 2022-1298
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 14, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1298 Lower Tribunal No. F15-12844B ________________

Anthony Frazier, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

Before EMAS, GORDO and BOKOR, JJ.

EMAS, J. In 2016, pursuant to a negotiated plea with the State, Anthony Frazier

was sentenced to ten years’ state prison followed by five years’ probation in

exchange for pleading guilty to charges of armed robbery and possession of

a firearm by a convicted felon. Prior to the plea, the State had filed its notice

that Frazier qualified as a Prison Releasee Reoffender, and notice of intent

to enhance Frazier as a Habitual Felony Offender and Habitual Violent

Felony Offender. As part of the negotiated plea, the State agreed, inter alia,

to waive the mandatory provisions of the Prison Releasee Reoffender

statute. 1

Following his release from prison, Frazier began serving his

probationary term. While on probation, he was arrested and, in May 2021,

the State filed the operative affidavit of violation of probation, alleging Frazier

violated the conditions of his probation by committing five new crimes and

by failing to pay the costs of supervision and drug testing fees.

1 The Prison Releasee Reoffender does not “enhance” or “increase” the maximum possible statutory penalty. Instead, it mandates imposition of the maximum term of imprisonment as the only available sentence, removing all sentencing discretion from the trial court. In the instant case, for example, the armed robbery offense is a first-degree felony, punishable by up to life in prison; under the Prison Releasee Reoffender statute, the trial court must sentence the defendant to “a term of imprisonment for life.” § 775.082(9)(a)3.a., Fla. Stat. (2022). In addition, the defendant “must serve 100 percent of the court-imposed sentence.” § 775.082(9)(b).

2 Prior to the commencement of the probation violation hearing, the

prosecution and defense announced they had tentatively reached a

negotiated plea (ten years’ State prison followed by ten years’ probation) but

when the terms of the plea were presented to the trial court, the court

inquired whether Frazier had qualified as a Prison Releasee Reoffender.

Following a review of the court file, it was confirmed that the State had in fact

filed its notice that Frazier met the qualifications for designation as a Prison

Releasee Reoffender, and that he qualified as a Prison Releasee

Reoffender. The trial court rejected the proposed negotiated plea, to which

the defense objected and moved to disqualify the trial court, alleging the trial

court had impermissibly “entered the fray” of the negotiations and

abandoned its neutral role by questioning the State regarding Frazier’s

status as a Prison Releasee Reoffender. The trial court denied the motion

to disqualify and proceeded to a probation violation hearing. Following the

hearing, the trial court found the State had proven Frazier violated the

conditions of his probation by having committed four new crimes, and

sentenced Frazier to life in prison as a Prison Releasee Reoffender for

armed robbery, and a concurrent three-year minimum mandatory sentence

for the offense of possession of a firearm by a convicted felon. This appeal

follows.

3 On appeal, Frazier asserts the trial court erred in denying his motion

for disqualification. We affirm the trial court’s order denying disqualification,

as the motion was legally insufficient. The inquiry into the terms of the

original plea in 2016, and the defendant’s status as a Prison Releasee

Reoffender, was appropriate to assist the trial court in its determination

whether to accept or reject the proposed negotiated plea. 2 Once properly

aware of the history of the case, the terms of the original sentence and

defendant’s status at that time, the trial court exercised its discretion to reject

the proposed negotiated plea and proceed to a probation violation hearing.

It is apodictic that, up until the time of sentencing, a trial court retains the

authority to reject a proposed plea negotiated between the parties. See Fla.

R. Crim. P. 3.172(g) (“No plea offer or negotiation is binding until it is

accepted by the trial judge formally after making all the inquiries,

advisements, and determinations required by this rule. Until that time, it may

2 See Fla. R. Crim. P. 3.171(b)(2) (“Responsibilities of the Prosecuting Attorney. The prosecuting attorney shall: (A) apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant’s background prior to acceptance of a plea by the trial judge”); Fla. R. Crim. P. 3.171(d) (“Responsibilities of the Trial Judge. After an agreement on a plea has been reached, the trial judge may have made known to him or her the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, the judge shall advise the parties whether other factors (unknown at the time) may make his or her concurrence impossible.”)

4 be withdrawn by either party without any necessary justification.”); Fla. R.

Crim. P. 3.172(h) (“If the trial judge does not concur in a tendered plea of

guilty or nolo contendere arising from negotiations, the plea may be

withdrawn.”); Goins v. State, 672 So. 2d 30, 31 (Fla. 1996); Rollman v. State,

887 So. 2d 1233, 1235 (Fla. 2004) (reaffirming that “a trial court retains the

authority to alter a prior plea arrangement up until the time sentence is

imposed, so long as the trial court provides the defendant an opportunity to

withdraw any plea that was entered in reliance on the promised sentence.”)

We find no merit in the remaining claims raised, and affirm the

sentence imposed following the revocation of probation, but note that the

written order of revocation of probation fails to conform to the trial court’s oral

pronouncement. The trial court orally pronounced that the State proved

Frazier violated his probation by committing the crimes of possession of

fraudulent motor vehicle tag; possession of a controlled substance; driving

under the influence; and driving with no valid driver’s license. The trial court

found that the three remaining alleged violations (lewd or lascivious

exhibition in a correctional facility, failure to pay costs of supervision, and

failure to pay drug testing fees) were not proven. The oral pronouncement

controls. See Smith v. State, 306 So. 3d 1147 (Fla. 3d DCA 2020); Shacker

v. State, 106 So. 3d 36 (Fla. 3d DCA 2013); Smith v. State, 100 So. 3d 253

5 (Fla. 3d DCA 2012). However, Frazier failed to preserve this issue for appeal

either by contemporaneous objection to the written revocation order, or by

filing a motion to correct sentence pursuant to Florida Rule of Criminal

Procedure 3.800(b). See Thomas v. State, 763 So. 2d 316 (Fla. 2000)

(approving district court’s decision holding that a conflict between an oral

pronouncement that defendant violated one condition of probation and the

written revocation order that he violated an additional seven conditions of

probation was not fundamental error correctable on appeal absent

preservation, as the asserted error had “no quantitative effect on the

sentence,” and further noting that the defendant or the State may seek to

correct a scrivener's error by filing a motion to correct sentence pursuant to

Florida Rule of Criminal Procedure 3.800(b)); Smith, 306 So. 3d at 1148

(following Thomas and affirming without prejudice to the filing of a motion to

correct the conflict between the oral pronouncement and written revocation

order).

Affirmed without prejudice to the filing of a timely and authorized

postconviction motion seeking to correct any conflict between the trial court’s

oral pronouncement and the written revocation order regarding those

violations found by the trial court to have been proven.