                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

DANNY LEE FLAGG,                      NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NOs. 1D14-1162 & 1D14-1600

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed November 9, 2015.

FOR CASE NO. 1D14-1162:

An appeal from the Circuit Court for Alachua County.
Mark W. Moseley, Judge.

Danny Lee Flagg, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.

FOR CASE NO. 1D14-1600:

An appeal from the Circuit Court for Alachua County.
David A. Glant, Judge.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Trisha Meggs Pate and Kristen Lynn Bonjour,
Assistant Attorneys General, Tallahassee, for Appellee.
ROBERTS, C.J.,

      Cases 1D14-1600 and 1D14-1162 were consolidated for travel purposes and,

due to the interdependent nature of the issues, have been consolidated for opinion.

The appellant, Danny Flagg, was born on July 27, 1991. In 2007, in case 2007-4603,

the State filed an information charging the appellant with two counts of home

invasion robbery. In 2008, the State amended the charges to one count of burglary

while armed and/or with an assault and one count of robbery with a deadly weapon.

In 2008, the appellant entered a nolo contendere plea to the amended charges. The

trial court withheld adjudication and sentenced the appellant as a youthful offender

to 161 days in county jail (time served) followed by six years’ probation.

      A few months later, the State filed an affidavit of violation of probation (VOP)

in case 2007-4603 that alleged three new law violations of robbery with a weapon

as well as possession of a firearm. In 2009, the appellant entered a plea of admission

to VOP in case 2007-4603. By the terms of the plea, probation was revoked, and

the appellant was adjudicated guilty and sentenced to 18 months in the Department

of Corrections (DOC), followed by 18 months’ community control, followed by 36

months’ probation.1    Although the sentence imposed was within the six-year


1
  This sentence was to run concurrently with the appellant’s sentences in case
numbers 2008-3830 and 2008-4014 in which he pled nolo contendere to one count
of robbery (no weapon) and one count of burglary of a dwelling, respectively. The
appellant was adjudicated guilty in both cases, and the plea agreements involved the
same sentence as case 2007-4603.
                                          2
youthful offender sentencing cap, the record is not wholly clear as to whether the

appellant’s youthful offender designation was continued.

      In 2010, the State filed an affidavit of violation of community control (VOCC)

in case 2007-4603. The affidavit alleged technical violations of failure to adhere to

instruction and failure to remain at his residence in contravention of his approved

schedule. An amended affidavit was later filed that added three new law violations.

A revocation hearing was held at which the appellant was represented by counsel.

The State elected not to proceed on the new law violations, and the trial court found

that no evidence was presented to prove the new law violations. On August 3, 2010,

in case 2007-4603, the trial court revoked community control for the technical

violations and re-sentenced the appellant to 25 years in DOC on each count, to be

served concurrently. 2

      The appellant asked defense counsel to appeal the revocation and sentence,

but no notice of appeal was filed. The appellant then filed a pro se motion for

postconviction relief under Florida Rule of Criminal Procedure 3.850 in the trial

court in all three cases alleging several grounds of ineffective assistance of counsel.

On February 11, 2014, the trial court summarily denied the 3.850 motion. The



2
   The appellant’s probation was also revoked in case 2008-3830, and he was
sentenced to 15 years in DOC, concurrent with the sentence in case 2007-4603. In
case 2008-4014, the appellant’s probation was revoked, and he was sentenced to 15
years in DOC, concurrent to the other two cases.
                                        3
appellant initiated a pro se appeal of the summary denial in case 1D14-1162. Shortly

thereafter, the appellant's petition for a belated direct appeal from the August 3,

2010, judgment and sentence was granted, and that appeal proceeded in case 1D14-

1600. The appellant later filed a Florida Rule of Criminal Procedure 3.800(b)(2)

motion in case 1D14-1600, arguing that the trial court erred in sentencing him

outside the six-year sentencing cap for youthful offenders following a technical

violation of community control. The motion was subsequently denied by the trial

court.

         We first consider the merits of the appellant’s postconviction appeal in 1D14-

1162 as the disposition in this case could potentially affect the sentencing issue in

1D14-1600. This Court reviews a summary denial without an evidentiary hearing

de novo and will affirm only where the appellant’s claims are facially invalid or

conclusively refuted by the record. Where no evidentiary hearing is held below, this

Court also accepts the defendant’s factual allegations to the extent they are not

refuted by the record. McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). See also

Fla. R. App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the

record shows conclusively that the appellant is entitled to no relief, the order shall

be reversed and the cause remanded for an evidentiary hearing or other appropriate

relief.”).




                                            4
       While the appellant’s 3.850 motion could be read as somewhat conclusory, it

nonetheless sufficiently raised issues of deficiency and prejudice such that an

evidentiary hearing on the issue of counsel’s ineffectiveness was warranted at the

minimum on grounds (1), (3), (5), and (6). His allegations of ineffectiveness could

not be conclusively refuted by the record that was attached. A fact-based inquiry

was necessary to refute the allegations. See Williams v. State, 642 So. 2d 67, 69

(Fla. 1st DCA 1994) (reversing and remanding a summary denial of ineffective

assistance claim and citing case law where the record on appeal was deemed

inadequate to make a fact-based determination of counsel’s ineffectiveness).

Accordingly, 1D14-1162 is reversed, and the case remanded for an evidentiary

hearing on the allegations of counsel’s ineffectiveness in grounds (1), (3), (5), and

(6).

       If after remand it is determined that counsel was not ineffective, the

sentencing issue raised in 1D14-1600 needs to be addressed. 3 The appellant was

originally sentenced as a youthful offender, which carries certain benefits. See Ch.

958, Florida Statutes (2007). The most notable feature of the Youthful Offender Act

is the six-year sentencing cap.

       Section 958.14, Florida Statutes (2007), provides:


3
 We note that the appeal only challenged the sentence imposed in case 2007-4603.
We decline to address the propriety of the sentences imposed in case 2008-3830 or
2008-4014.
                                         5
      A violation or alleged violation of probation or the terms of a
      community control program shall subject the youthful offender to the
      provisions of s. 948.06. However, no youthful offender shall be
      committed to the custody of the department for a substantive violation
      for a period longer than the maximum sentence for the offense for
      which he or she was found guilty, with credit for time served while
      incarcerated, or for a technical or nonsubstantive violation for a period
      longer than 6 years or for a period longer than the maximum sentence
      for the offense for which he or she was found guilty, whichever is less,
      with credit for time served while incarcerated.

      The term “substantive” in the statute has been interpreted to refer “exclusively

to a violation premised on the commission of a separate criminal act” by a youthful

offender. See State v. Meeks, 789 So. 2d 982, 989 (Fla. 2001). Where there has

been a substantive violation, such as a new law offense, a previously designated

youthful offender may be sentenced above the six-year cap up to the statutory

maximum for the underlying offenses. See Smith v. State, 109 So. 3d 1180, 1181

(Fla. 1st DCA 2013). In contrast to a substantive violation, which allows for a higher

sentence, when there has been a technical violation of probation, i.e., a violation of

a rule of probation, the six-year sentencing cap still applies. See West v. State, 129

So. 3d 1155, 1157 (Fla. 3d DCA 2014). See also Hudson v. State, 989 So. 2d 725,

726 (Fla. 1st DCA 2008).

      The appellant argues that his 2010 violations were all technical violations;

therefore, the six-year sentencing cap applies, rendering his concurrent 25-year

sentences in 2007-4603 improper. We agree that we must adhere to the plain

language of section 958.14, which clearly provides, “[N]o youthful offender shall be
                                          6
committed to the custody of the department . . . for a technical or nonsubstantive

violation for a period longer than six years[.]” It is undisputed that the violations

here were technical violations. Therefore, the six-year youthful offender sentencing

cap should have applied. See Martinez v. State, 980 So. 2d 1245 (Fla. 2d DCA 2008)

(reversing and remanding for resentencing on a technical violation of probation,

following an intervening substantive violation of probation, where the sentence

imposed on the technical violation was outside of the six-year sentencing cap for

youthful offenders).

      While the six-year sentencing cap is perhaps the most notable portion of the

Youthful Offender Act, the Act also carries certain benefits that include the

availability of programs and the possibility of early release. See Christian v. State,

84 So. 3d 437, 442-43 (Fla. 5th DCA 2012). In addition to a sentence within the

six-year cap, the appellant’s youthful offender designation should have also been

continued in this case. See Hudson, 989 So. 2d at 726 (“When a defendant has been

designated a youthful offender, the court may not change that status by way of

revocation of probation or community control.”); Smith, 109 So. 3d at 1181 (“[O]nce

a circuit court has imposed a youthful offender sentence, it must continue that status

upon resentencing after a violation of probation or community control.”). We find

the sentence imposed in 1D14-1600 was in error as it exceeded the six-year

sentencing cap for a youthful offender following a technical violation of community

                                          7
control.

      Case 1D14-1162 is reversed and remanded with instructions to hold an

evidentiary hearing. After resolution of case 1D14-1162, if applicable, the appellant

should be resentenced as a youthful offender within the six-year sentencing cap in

section 958.14, including credit for time served.

      REVERSED and REMANDED with instructions.

BILBREY, J., CONCURS; SWANSON, J., CONCURS with opinion.




                                          8
SWANSON, J., Concurs with opinion.

      I concur, without comment, our decision to reverse 1D14-1162 and remand

for evidentiary hearing. Insofar as the sentencing issue raised in 1D14-1600 is

concerned, while I concur, it is not without reservation.

      Once a defendant has committed a substantive violation, as transpired in this

case, a strong argument can be made that a trial court should be empowered with the

discretion to exceed the six year youthful offender cap, regardless of whether a

subsequent violation is substantive or technical. Absent such sentencing discretion,

the statute creates a negative incentive. Specifically, trial courts are “boxed in” and,

by necessity, may well be inclined to come down hard on youthful offenders on a

substantive violation rather than risk a subsequent technical violation for which the

trial court is precluded from imposing a sentence that would exceed the six year cap.

Irrespective of this view, a plain reading of Section 958.14, Florida Statutes (2007),

compels this court to find the sentence imposed in 1D14-1600 was error in that it

exceeded the six year sentencing cap for a youthful offender following a technical

violation of community control.




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