West Palm Beach, Florida - Criminal Defense lawyer represented defendant with appealing his misdemeanor violations of a condition of pretrial release.

Richard Carl Caldwell ("Defendant”) appeals his convictions and

sentences for forty-one counts of misdemeanor violation of a condition of

pretrial release from a domestic violence charge pursuant to section

741.29(6), Florida Statutes (2019). On appeal, Defendant argues:

(1) his convictions are fundamentally erroneous because he did not violate

a condition of pretrial release within the meaning of section 741.29(6);

(2) the county court considered an impermissible sentencing factor; and

(3) the county court erred by imposing a mental health evaluation as a

special condition of probation. We affirm on the second issue without

further comment. For the reasons articulated below, we affirm on the first

issue and reverse on the third issue.

The facts in this case are largely undisputed. Defendant was arrested

for domestic battery in August 2019. At first appearance, the court set

Defendant's bond at $15,000, and ordered that he have no contact with

the victim as a condition of pretrial release. Defendant did not post bond

and, consequently, was not released from jail.

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While in jail on the domestic battery charge, Defendant made a plethora

of phone calls to the victim. During several of the calls, Defendant

acknowledged he could get in trouble for contacting the victim due to the

no contact order. The State thereafter charged Defendant with fifty counts

of misdemeanor violation of a condition of pretrial release from a domestic

violence charge pursuant to section 741.29(6), Florida Statutes. At the

trial on the violation charges, Defendant admitted to making the phone

calls, and further admitted to intentionally using the phone credentials of

other inmates for some of the calls. Nonetheless, Defendant testified that

because he never bonded out after his initial arrest on the domestic battery

charge, he did not believe the no contact condition applied.

The jury ultimately found Defendant guilty on forty-one of the fifty

counts. The county court thereafter adjudicated Defendant guilty in

accordance with the verdict, and sentenced him to an overall aggregate

sentence on all counts of five years in prison followed by five years of

probation. After the sentence was pronounced, the State requested the

county court impose as a special condition of probation that Defendant

undergo a mental health evaluation and submit to any recommended

treatment. The only argument advanced by the State in support of the

special condition was that the victim "would like” Defendant to undergo a

mental health evaluation. The county court agreed to the special

condition, stating "I don't suppose that could hurt.” Defendant did not

immediately object to the imposition of this special condition. Defendant

later filed a rule 3.800(b)(2) motion to correct his sentence, arguing there

was no reasonable nexus between the special condition and the crimes

committed. The county court denied the motion. This appeal follows.

We begin our analysis by addressing Defendant's argument that his

convictions are fundamentally erroneous because he did not violate a

condition of pretrial release within the meaning of section 741.29(6),

Florida Statutes. Section 741.29(6) defines the crime of violation of a

condition of pretrial release and provides that:

A person who willfully violates a condition of pretrial release

provided in s. 903.047, when the original arrest was for an act

of domestic violence . . . , commits a misdemeanor of the first

degree . . . .

§ 741.29(6), Fla. Stat. (2019). Section 903.047, which is explicitly

referenced in section 741.29(6), sets forth the conditions of pretrial release

and provides in relevant part:

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(1) As a condition of pretrial release, whether such release is

by surety bail bond or recognizance bond or in some other

form, the defendant must:

(a) Refrain from criminal activity of any kind.

(b) If the court issues an order of no contact, refrain from any

contact of any type with the victim, except through pretrial

discovery pursuant to the Florida Rules of Criminal

Procedure. An order of no contact is effective immediately and

enforceable for the duration of the pretrial release or until it

is modified by the court. The defendant shall be informed in

writing of the order of no contact, specifying the applicable

prohibited acts, before the defendant is released from custody

on pretrial release. . . .

§ 903.047(1)(a)–(b), Fla. Stat. (2019) (emphasis added).

On appeal, Defendant argues he did not "violate a condition of pretrial

release” within the plain and ordinary meaning of the language used in

section 741.29(6). Specifically, he maintains that "[t]he plain and obvious

meaning of the phrase 'violates a condition of pretrial release,' in the

context of Sections 741.29(6) and 903.047, requires a defendant to post a

bond and thereby effectuate his pretrial release before he can violate a

condition of that release and commit the crime defined in Section

741.29(6).” Thus, because Defendant did not post bond to effectuate his

release, his conduct could not constitute a violation of a condition of

pretrial release. We disagree as Defendant's interpretation of section

741.29(6) ignores and renders meaningless the language in section

903.047(1)(b) providing that "[a]n order of no contact is effective

immediately.”

"When construing the meaning of a statute, we must first look at its

plain language.” McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d

1204, 1208 (Fla. 2006). "It is a fundamental rule of statutory construction

that the entire statute under consideration must be considered in

determining legislative intent” and "[e]ffect must be given to every part of

the section and every part of the statute as a whole.” State v. Rodriguez,

365 So. 2d 157, 159 (Fla. 1978). Moreover, "courts should avoid readings

that would render part of a statute meaningless.” Unruh v. State, 669 So.

2d 242, 245 (Fla. 1996) (quoting Forsythe v. Longboat Key Beach Erosion

Control Dist., 604 So. 2d 452, 456 (Fla. 1992)).

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Here, because section 903.047 is referenced in section 741.29(6), both

statutes must be construed together to harmonize the statutes and give

effect to the legislature's intent. Section 741.29(6) provides that

"[a] person who willfully violates a condition of pretrial release provided in

s. 903.047 . . . commits a misdemeanor of the first degree.” § 741.29(6),

Fla. Stat. (2019). Section 903.047, in turn, sets out the conditions of

pretrial release and includes as an available condition that the defendant

"refrain from any contact of any type with the victim.” § 903.047(1)(b), Fla.

Stat. (2019); see also Sheppard v. State, 974 So. 2d 529, 531 (Fla. 5th DCA

2008) (recognizing that "[t]he conditions of pretrial release set out in

section 903.047 . . . include the prohibition of contact by the defendant

with the victim”). There is no language in either section dictating that a

defendant must be released from jail in order to violate the condition of

pretrial release prohibiting contact with the victim. To the contrary, the

language in section 903.047(1)(b) expressly states that, "[a]n order of no

contact is effective immediately.” § 903.047(1)(b), Fla. Stat. (2019)

(emphasis added). Simply put, the plain language of sections 741.29(6)

and 903.047(1)(b) support the conclusion that a defendant can violate a

condition of pretrial release prohibiting contact with the victim before

being released from jail. Any other interpretation of the statutes would

render meaningless the "effective immediately” language in section

903.047(1)(b).

Our holding is supported by Florida Standard Criminal Jury

Instruction 8.25 and the Florida Supreme Court's interpretation of that

instruction. Instruction 8.25, which was adopted in 2014, sets forth the

elements the State must prove to convict a defendant of violating a

condition of pretrial release under section 741.29(6) as follows:

1. (Defendant) was arrested for an act of domestic violence.

2. Before [his] [her] trial, (defendant's) release on the domestic

violence charge was set with a condition of (insert condition of

pretrial release in Fla. Stat. 903.047).

3. (Defendant) knew that a condition of [his] [her] pretrial

release was (insert condition).

4. (Defendant) willfully violated that condition of pretrial

release by (insert the manner in which the defendant is alleged

to have violated pretrial release).

Fla. Std. Jury Instr. (Crim.) 8.25 (emphasis added). In adopting the

standard instruction, the Florida Supreme Court stated: "Element number

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two to instruction 8.25—i.e., 'Before [his] [her] trial, (defendant's) release

on the domestic violence charge was set with a condition of (insert

condition of pretrial release in Fla. Stat. 903.047)'—reflects the

interpretation that one can violate a condition of pretrial release before being

released from jail.” In re Standard Jury Instructions in Crim. Cases—

Instruction 8.25, 141 So. 3d 1201, 1202 (Fla. 2014) (emphasis added).

The holding in Santiago v. Ryan, 109 So. 3d 848 (Fla. 3d DCA 2013),

further supports our holding. In that case, the defendant was arrested

and charged with aggravated stalking. Id. at 849. At first appearance, the

trial court set bond and ordered the defendant have no contact with the

victim as a condition of pretrial release pursuant to section 903.047(1)(b).

Id. While still in jail, the defendant made several threatening phone calls

to the victim. Id. Based on those calls, the defendant was arrested on a

new case and charged with aggravated stalking, witness tampering, and

violation of a temporary restraining order. Id. The trial court thereafter

set a separate bond for the aggravated stalking and witness tampering

charges, and released the defendant on his own recognizance on the

remaining offenses. Id. The defendant ultimately posted bond in both

cases and was released from jail. Id. at 849–50. When the defendant

appeared before the trial court for his arraignment on the first case, the

court sua sponte revoked his bond on that first case pursuant to section

903.0471, Florida Statutes. Id. at 850. That statute permits the sua

sponte revocation of a defendant's pretrial release based upon a finding of

"probable cause to believe that the defendant committed a new crime while

on pretrial release.” Id. at 849 (quoting § 903.0471, Fla. Stat.).

On habeas corpus review of the order revoking the defendant's pretrial

release, the Third District framed the legal issue presented as whether

section 903.0471, Florida Statutes, "applies when the defendant commits

new felonies from jail during the period between the setting of bond for

previous offenses and his release.” Id. In denying habeas corpus relief,

the court rejected the defendant's claim that his new crimes were not

committed "while on pretrial release” within the meaning of that phrase as

used in section 907.0471, and concluded that the defendant's bond on the

initial aggravated stalking charge could be revoked based on conduct

occurring "after the bond on his first case [was] set but before he [was]

released on the bond.” Id. at 850. In so holding, the court also stated,

"we think that the claim that a defendant is free to commit new crimes

without endangering a previous order of pretrial release merely because

he had not yet complied with the conditions requires an unsupportable

anomaly in the statute, which . . . we will not approve.” Id. at 851.

Thus, although the Santiago case did not address section 741.29(6),

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it nonetheless supports the notion that a defendant can violate the terms

of pretrial release before being released from jail.

We next address Defendant's argument that the county court

erroneously imposed a mental health evaluation as a special condition of

probation. A court is statutorily authorized to impose "special terms and

conditions of probation or community control.” § 948.039, Fla. Stat.

(2019). "To impose a special condition of probation, there must be a

reasonable nexus between the condition and the crime committed.”

Carone v. State, 975 So. 2d 553, 554 (Fla. 4th DCA 2008); see also

§ 948.039, Fla. Stat. ("The terms and conditions should be reasonably

related to the circumstances of the offense committed and appropriate for

the offender.”). A special condition of probation is therefore "invalid if

'it (1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not in itself criminal, and (3) requires or

forbids conduct which is not reasonably related to future criminality.'”

Lizano v. State, 239 So. 3d 714, 716 (Fla. 4th DCA 2018) (quoting Biller v.

State, 618 So. 2d 734, 734–35 (Fla. 1993)).

The challenged special condition of probation in this case has no

relationship to the charged crimes, does not prohibit conduct that is itself

criminal, and does not appear to have any reasonable relationship to

Defendant's future criminality. The State nonetheless argues that

Defendant's "blatant disregard” of the no contact order demonstrates that

he "had no understanding or appreciation” for the criminality of his

conduct. However, criminality alone does not justify the imposition of a

mental health evaluation as a special condition of probation, particularly

in a case like the present where there is no indication Defendant's mental

health played a role in his crimes. Thus, the special condition requiring

Defendant to submit to a mental health evaluation must be stricken.

For the foregoing reasons, we affirm Defendant’s convictions, reverse

the portion of his sentence imposing a mental health evaluation as a

special condition of probation, and remand for the county court to strike

the special condition