CHARLIE DENNIS ALTMAN v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: April 12, 2023
• Docket: 21-1186
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 12, 2023. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D21-1184; 3D21-1185 & 3D21-1186 Lower Tribunal Nos. 18-443-A-K; 18-100-A-K; 18-793-A-K ________________

Charlie Dennis Altman, Appellant,

vs. The State of Florida, Appellee.

Appeals from the Circuit Court for Monroe County, Mark Wilson, Judge.

Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.

Before FERNANDEZ, C.J., and LOGUE and HENDON, JJ.

LOGUE, J.

Charlie Dennis Altman appeals the trial court’s order revoking

probation and imposing sentence. We affirm because there is competent substantial evidence in the record to support the trial court’s determination

that Altman willfully and substantially violated the conditions of his probation

and, therefore, the trial court did not abuse its discretion in revoking Altman’s

probation. Furthermore, the trial court did not consider uncharged conduct

as a basis for revoking Altman’s probation, and it did not err in denying

Altman’s request to be resentenced by a different judge.

Factual and Procedural History

Altman was charged with aggravated stalking in violation of section

784.048 (case no. 2018-CF-100-AK); grand theft in violation of sections

812.014(1) and 812.014(2)(c) (case no. 2018-CF-443-AK); organized

scheme to defraud in violation of section 817.034, and four counts of cashing

or depositing item with intent to defraud in violation of section 832.05(3)

(case no. 2018-CF-793-AK). On October 10, 2019, Altman entered a plea of

nolo contendere pursuant to a negotiated plea agreement. Altman was

adjudicated guilty in all three cases and placed on five years’ probation, with

the probationary periods to run concurrently.

The plea agreement required Altman to leave and remain out of

Monroe County from October 12, 2019, at 12:00 p.m. until the successful

completion of his probation. During sentencing, the trial court discussed this

condition with the prosecutor, defense counsel, and Altman and it was

2 indicated that Altman would be flying out of Monroe County after checking in

with the local probation office following his release from jail. Altman stated

the flight left the following day. Altman contends it was understood by all that

he would be flying to his family home in South Carolina, but this was never

expressed during the sentencing hearing, nor was it discussed whether

Altman would continue to be supervised by Monroe County, whether his

supervision would be transferred to South Carolina, or whether he could

reside in South Carolina pending any potential transfer.

On November 15, 2019, an affidavit of violation of probation was filed

alleging that Altman violated his probation by leaving his county of residence

without the consent of the probation officer. The affidavit alleged that Altman

left Palm Beach County his county of residence, without the consent of the

probation officer and entered Horry County, South Carolina on November

10, 2019. The violation report stated that Altman contacted his probation

officer on November 12, 2019, and advised he had to leave his apartment

because his roommate got into a fight. Altman advised the probation officer

he was in South Carolina and probation officer told him he could not be out

of state without permission. The probation officer instructed him to return to

Florida and report to the probation office by November 13, 2019, at 2:30 p.m.

Altman reported as instructed.

3 The probation officer noted in the violation report that Altman wanted

to move to South Carolina to be with his mother. The probation officer

reported that she was in the process of “submitting the transfer request at

this time” and recommended no further action. The probation officer noted,

however, that if Altman violated supervision again for any reason, she would

submit a full violation recommending a warrant be issued. The trial court

nevertheless issued a warrant based on this initial violation.

On January 21, 2020, an amended affidavit of violation of probation

was filed. The amended affidavit alleged that Altman violated probation a

second time by changing his residence without the consent of the probation

officer. The affidavit explained that on January 9, 2020, the probation officer

learned that Altman moved from his last known place of residence in Palm

Beach County on or about December 9, 2019, without the consent of the

probation officer and that his whereabouts were unknown. An addendum to

the prior violation report explained that on January 8, 2020, Altman’s

roommate advised officers serving his warrant that Altman went to South

Carolina about one month earlier. The addendum noted Altman’s

whereabouts were unknown and listed his location as “Absconder.”

This addendum did not indicate that the probation office was submitting

the transfer request but rather stated that “[o]n 11/22/2019, Supervisor

4 Wright spoke with the offender regarding transferring to South Carolina, she

instructed him to come in the following Wednesday at 10:00 a.m. to fill out

the application to transfer, the offender never showed up.” The addendum

also stated that the probation officer spoke with Altman on December 16,

2019 and instructed him to report for the month and he did not show up. The

probation officer attempted to call Altman, but his phone was disconnected,

and she received no answer when she tried to reach Altman’s mother. The

probation officer recommended Altman’s probation be revoked. The trial

court issued an amended warrant reflecting this second violation on

February 4, 2020 and revoked the prior warrant.

On February 15, 2021, a second amended affidavit of violation of

probation was filed adding a third violation. The affidavit alleged Altman

violated his probation by leaving his county of residence without the consent

of the probation officer because he left Palm Beach County without the

consent of the probation officer and entered Broward County as evidenced

by his arrest in Broward County on February 8, 2021, pursuant to the

February 4th warrant. The probation officer once again recommended

Altman’s probation be revoked.

A probation violation hearing was held on April 29, 2021, and Altman

admitted he violated his probation as alleged in the second amended

5 affidavit. Altman explained that when he was placed on probation following

his plea, he reported to the local probation office as instructed and told the

probation officer that he wanted his supervision transferred to South

Carolina. The Monroe County probation officer told him that he could transfer

supervision within Florida, based on the trial court’s order that he leave

Monroe County, and then request a transfer to South Carolina. Once in Palm

Beach County, Altman requested this transfer. The Palm Beach County

probation officer told Altman she would request the transfer but that it would

not be done immediately.

Altman then alleged that he stayed with his friend in Palm Beach

County until one weekend when some illegal activity occurred. Not wanting

to violate his probation and unable to contact the probation office because it

was the weekend, Altman alleged he flew to his mother’s house in South

Carolina. Altman called his probation officer after arriving in South Carolina

and advised her of the situation. The probation officer told Altman this was a

violation and instructed him to return to Florida and report to her office the

following day. Altman complied and said the probation officer told him to stay

in a hotel for a night or two while she put in a request to transfer his

supervision to South Carolina. Altman stated the probation officer never told

him he could not leave Florida again after he completed the paperwork for

6 the transfer, so he returned to South Carolina. Once in South Carolina,

Altman contacted the local probation office, but it advised they had not

received any transfer paperwork.

Altman remained in South Carolina awaiting the processing of his

transfer paperwork. Then, in February of 2020, Altman learned of the

February 4th warrant. Altman stated that he reached out to his prior attorney,

the probation office in Key West, the prosecutor, and sought new counsel to

get the violation resolved. He alleged that the pandemic and resulting

shutdowns in March 2020 thwarted his attempts to resolve the violation. He

was ultimately arrested in Broward County in February 2021 on the

outstanding warrant. Altman alleged he was back in Florida to turn himself in

when he was arrested.

Altman apologized to the trial court and explained that he was trying

his best to comply with the order to leave Monroe County and keep everyone

notified of his whereabouts. Defense counsel argued that Altman committed

three low-risk technical violations that did not warrant a revocation and

lengthy prison sentence. Counsel noted that Altman did not commit any new

crimes while on probation and despite Altman perhaps not taking the

appropriate steps to relocate to South Carolina, “at some point he did contact

probation and tell them where he was.” Counsel asked the court to reinstate

7 his probation so he could return to South Carolina. At a sidebar, defense

counsel also advised the court that Altman was a cooperating witness in a

separate murder case and argued that Altman’s cooperation with the State

should weigh in favor of reinstating his probation. The State asked the trial

court to revoke Altman’s probation and sentence him to the bottom of the

guidelines, 62.625 months.

The trial court accepted Altman’s admissions and found he willfully and

materially violated the terms of his probation, characterizing Altman’s actions

as absconding over the defense’s objection that absconding was a separate

violation not listed in the violation affidavit. The trial court further stated it did

not consider this a technical violation, revoked Altman’s probation, and

sentenced him to concurrent 62.625-month terms.

As the hearing was wrapping up, the trial court heard Altman say

“[g]ood luck to you, bitch” as he walked away from the camera. 1 The trial

court then noted that it had not called the next case and asked why it should

not impose consecutive sentences based on what just occurred. Defense

counsel argued the sentence imposed was more than sufficient, and both

defense counsel and the prosecutor acknowledged they did not hear

Altman’s comment.

1 Altman appeared in court via live video from the Key West Jail.

8 The trial court then asked deputies to bring Altman back and ordered

that his sentences run consecutively. In doing so, the judge noted that “I

haven’t called the next case and so we haven’t moved on and so I, upon

further consideration, think that the sentences in your case should be served

consecutively rather than concurrently.” Defense counsel objected, arguing

that a proper remedy would have been to hold Altman in contempt “rather

than . . . what I would consider a vindictive sentence enhancement based on

the displeasure of the Court to the defendant’s comments.” In response, the

judge stated that Altman’s conduct “suggests . . . that the sentence imposed

was inadequate in order to dissuade him from criminal activity in the future.”

On May 13, 2021, the trial court issued an order revoking Altman’s probation.

Defense counsel then filed a motion to correct sentencing error

pursuant to Florida Rule of Criminal Procedure 3.800(b)(1). The motion

argued Altman should be resentenced by a different judge because the

judge’s actions in ordering that Altman serve his sentences consecutively

instead of concurrently resulted in a vindictive sentence and violated double

jeopardy. The motion also argued that the trial court incorrectly considered

uncharged conduct, i.e., absconding, in revoking Altman’s probation. The

trial court never ruled on the motion. A notice of appeal was timely filed.

9 After the notice of appeal was filed, Altman filed another motion to

correct sentencing error pursuant to Florida Rule of Criminal Procedure

3.800(b)(2). That motion argued that Altman be resentenced because the

prior record section of the sentencing scoresheet relied upon by the trial court

at the probation violation hearing was incorrectly calculated. The motion also

asked that Altman be resentenced by a different judge because he feared

the trial judge would not be fair given the judge tripled the original sentence.

The trial court granted the motion in part and ordered that Altman be

sentenced pursuant to a properly calculated scoresheet but denied the

request for resentencing by a different judge. At resentencing, the parties

agreed that the lowest permissible sentence under a correctly calculated

scoresheet was approximately 43.5 months. Defense counsel argued as

mitigating evidence that since Altman’s last sentencing hearing he testified

for the State and helped the State secure a conviction. The defense then

argued that resentencing Altman to a lengthy prison term was excessive

given the technical nature of the violations and asked the trial court to

consider some form of reinstatement or at least run his sentences

concurrently “as was contemplated by the way these cases were originally

resolved.” The State asked the trial court to resentence Altman to sixty

months.

10 Altman then addressed the court and apologized for what happened at

his previous hearing. Altman again explained that he believed he was not

only permitted to go to South Carolina, but also required to do so based on

the trial court’s order that he leave Monroe County. After hearing from

counsel and Altman, the judge stated, “I don’t want to leave anyone with the

impression that, you know, I feel as though I’m bound by what I did last time,

because I’m not.” The judge credited Altman for testifying for the State and

helping secure a conviction and resentenced Altman to consecutive 45-

month terms in each case. Defense counsel asked the trial court to

reconsider the imposition of consecutive sentences, arguing that the trial

court carried over the offense it felt from its perceived slight at the prior

sentencing hearing. The judge responded, “what happened last time is

neither here nor there,” “[t]his is a de novo sentencing proceeding,” and that

he gave the case “a great deal of consideration.”

Analysis

This Court reviews a trial court’s revocation of probation for abuse of

discretion. Towns v. State, 259 So. 3d 291, 293 (Fla. 3d DCA 2018). We

review the trial court’s finding of a willful and substantial violation to

determine whether it is supported by competent substantial evidence. Id.

11 Altman argues the trial court abused its discretion in revoking his

probation because he committed only technical violations, did not commit

any new crimes, and made a good faith effort to comply with the conditions

of his probation. Altman further contends the trial court erred in considering

uncharged conduct as a basis for revoking his probation and in denying his

request to be resentenced in front of a different judge.

We find that the record contains competent substantial evidence to

support the trial court’s finding that Altman willfully and substantially violated

his probation by leaving his county of residence and changing his residence

without first procuring the consent of his probation officer. Altman admitted

violating on three separate occasions. His first violation occurred only a

month into his probation when he left for South Carolina. His probation officer

advised him this was a violation and instructed him to return. Altman

complied and returned the next day. Had this been Altman’s only violation,

this matter might be like Carter v. State, 659 So. 2d 453 (Fla. 4th DCA 1995),

the Fourth District decision on which Altman relies. See id. at 454 (noting the

affidavit alleged only a single violation concerning the unauthorized move

from Alabama and not a reporting violation upon defendant's return to

Florida).

12 However, Altman admitted he returned to South Carolina three days

after his first violation (which, again, occurred only a month into his

probationary term) and stayed there for over a year, even after learning that

there was a warrant out for his arrest for violating his probation by returning

to South Carolina without the consent of his probation officer. Altman alleged

at the probation violation hearing that upon returning to Florida after his first

violation, his probation officer told him the transfer request was put in and

that he “filled out all of the paperwork” for the transfer. He alleged that the

probation officer never told him that he could not leave Florida again after he

filled out the paperwork for the transfer.

This is, however, where the record becomes at odds with Altman’s

version of events. The amended affidavit of violation of probation, completed

after Altman’s second violation for returning to South Carolina, indicates that

the probation officer’s supervisor spoke with Altman on November 22, 2019,

regarding the transfer to South Carolina and instructed him to come in the

following Wednesday at 10:00 a.m. to fill out the transfer application, but

Altman never showed up. The amended affidavit further provides that the

probation officer spoke with Altman on December 16, 2019 and instructed

him to report for the month but again, he never showed up. Detectives

attempting to serve the arrest warrant on Altman on January 8, 2020, learned

13 from his friend that Altman returned to South Carolina. The probation officer

attempted to contact Altman on January 17, 2020, without success as his

phone was disconnected and she received no response from Altman’s

mother. These portions of the record contradict Altman’s claim that he filled

out the transfer paperwork and believed he was free to return to South

Carolina.

Furthermore, Altman knew of the outstanding arrest warrant for a year

and never attempted to turn himself in. While he alleged at the violation

hearing that he was on his way to turn himself in when he was arrested, he

was picked up in Broward County, not in Key West. Altman also faults the

pandemic, but COVID-19 related lockdowns did not begin until March 2020,

while Altman left for South Carolina a second time around late November or

early December of 2019 and learned of the outstanding arrest warrant in

February 2020, all before the pandemic became an issue. Moreover, as the

trial court noted at the violation hearing, the courts were not shut down during

this time.

Based on the foregoing, there is competent substantial evidence in the

record supporting the trial court’s finding of a willful and substantial violation

of the Order of Probation.

14 As to Altman’s contention that the trial court considered uncharged

conduct as a basis for revoking his probation, this argument is without merit.

The record reflects the trial court considered only the conduct charged in the

second amended affidavit of violation of probation. Specifically, that Altman

left his county of residence twice and changed his residence to South

Carolina all without first procuring the consent of his probation officer. While

the trial court early in the violation hearing characterized Altman’s conduct

as absconding, the fact remains that the only actual conduct relied on by the

trial court in finding a willful and substantial violation was that specifically

provided in the second amended affidavit.

Altman’s reliance on the First District’s decision in Perkins v. State, 842

So. 2d 275 (Fla. 1st DCA 2003), is misplaced because the First District did

not reverse in that instance based on the trial court’s characterization of the

defendant’s actions as absconding, despite that language not being used in

the violation affidavit. Rather, the court reversed because the trial court

revoked probation based on a different time period than that contained in the

violation affidavit. Id. at 277-78. Here, in contrast, the trial court relied on the

specific conduct alleged in the second amended affidavit.

Finally, Altman contends the trial court erred in denying his request to

be resentenced in front of a different judge. Altman argues that the trial

15 court’s decision to resentence him to consecutive terms indicated the trial

judge was predisposed to run Altman’s sentences consecutively and was

biased against him based on Altman’s comment during his first violation

hearing. However, Altman’s arguments disregard the fact that the trial court

considered Altman’s mitigation evidence in reducing his sentence to 45-

month terms. While the trial court still ordered these terms to run

consecutively rather than concurrently, the trial court stated throughout the

hearing that it was not under “the impression that, you know, I feel as though

I’m bound by what I did last time, because I’m not”; “what happened last time

is neither here nor there[;]” “[t]his is a de novo sentencing proceeding[;]” and

that he had given the case “a great deal of consideration.” The trial court was

within its discretion to resentence Altman to consecutive terms, and the trial

court’s comments during resentencing indicate it gave due consideration to

this issue and did not feel compelled or bound to impose the same sentence

based on what occurred during the first violation hearing.

Accordingly, we affirm the trial court’s revocation of probation and

imposition of sentence in all respects.