WITHHOLDS ABOUND!

King of the Withhold” APD Austyn Sanders

Great news for those interested in criminal justice reform came down from the Fourth DCA last week, courtesy of Austyn Sanders, Barbara Duffy, and former 17th Circuit drug court honcho Melanie May.

From STATE v. ROODY DHAITI, October 27, 2021, allowing multiple withholds for simple drug possession (and other non-violent charges) for chronic substance abusers:

A little bit of statutory construction and the rule of lenity are at issue in the State’s appeal of the defendant’s sentence. The State argues the trial court erred by withholding adjudication and placing the defendant on drug offender probation, pursuant to section 948.20(1), Florida Statutes (2019), because the defendant had previously received three prior withholds of adjudication. We disagree and affirm.


The State charged the defendant with possession of Alprazolam, a third-degree felony … The defendant pleaded no contest and moved for alternative sentencing under section 948.20, Florida Statutes (2019), the drug offender probation statute

Section 948.20(1) allows the court to withhold adjudication and place a defendant on drug offender probation if “the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a)
or (6)(a) [prohibiting the purchase or possession of certain controlled substances], or other nonviolent felony.” § 948.20(1), Fla. Stat. (2019). That statute specifically provides: “the court may also stay and withhold
the imposition of sentence and place the defendant on drug offender probation or into a postadjudicatory treatment-based drug court program if the defendant otherwise qualifies.”

Here too, allowing the trial court to withhold and impose drug offender probation is consistent with strong policy considerations that treatment is the most effective way to rehabilitate a chronic substance abuser like the defendant. Section 948.20’s specific provision covering drug offender probation controls over the general provisions of section 775.08435. And, section 948.20 was enacted after section 775.08435, expressing the latest in legislative intent … (emphasis added)

WELL DONE!

60 thoughts on “WITHHOLDS ABOUND!”

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    What a joke!

    How desperate Austyn must be for human interaction that he has to pat himself on the back on this BS jaablog. Wow.

    It’s not like he argued anything to the 4th. He didn’t even write the damned brief. He just made a jackass of himself in Court like he does all the time. Duffy just happened to agree with him. Reminds me about that ‘broken clock’ saying.

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      So true though. So true. Did you even talk to the appellate attorney in Palm Beach when the state appealed? Or did you just let them do their thing and then email Gelin to give you all the credit when the opinion was released?

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        This wouldn’t even be at the appellate level
        If Austyn hadn’t recognized the problem…. if it was so easy why hasn’t any other attorney fought on this issue.

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        Youre right. Judge Duffy really made all the difference. And yes, I did contact the appeals and follow up on statutory analysis:
        Sent: Tuesday, July 27, 2021 2:37 PM
        To: ************
        Subject: RE: SERVICE OF COURT DOCUMENT CASE NUMBER 062019CF006892A88810 STATE OF FLORIDA VS DHAITI, ROODY

        https://www.flsenate.gov/laws/statutes/2004/948.034

        Hi, this similar in kind alternative sentencing statute 948.034 was repealed in 2010 by legislature but specified who could and could not get adjudication withheld… I think that is instructive on legislative intent since it shows the legislature clearly knows how to preclude further withholds. Just a though…

        Austyn

        From: Austyn Sanders
        Sent: Saturday, July 24, 2021 11:49 AM
        To: ***************
        Subject: RE: SERVICE OF COURT DOCUMENT CASE NUMBER 062019CF006892A88810 STATE OF FLORIDA VS DHAITI, ROODY

        Hi *******
        I found this case Nelson interpreting the predecessor version of statute before 2009 amendments instructive–at the end about the issue of the court’s discretionary ability to stay and withhold adjudication in the alternative sentencing scheme. I argued it was an exception to the general prohibition on number of withholds and Judge Duffy agreed it was analogous to Sloan and YO withhold exception where normally precluded.
        Austyn

        From: ***
        Sent: Wednesday, June 30, 2021 8:58 PM
        To: ****
        Subject: RE: SERVICE OF COURT DOCUMENT CASE NUMBER 062019CF006892A88810 STATE OF FLORIDA VS DHAITI, ROODY

        Hi Austyn,
        Sorry for the delayed reply. Thank you for making sure we received this. Haven’t decided yet whether will handle ourselves or designate WPB, but will keep you updated.
        Thanks!

        From: Austyn Sanders
        Sent: Wednesday, June 23, 2021 11:06 AM
        To: ****
        Subject: FW: SERVICE OF COURT DOCUMENT CASE NUMBER 062019CF006892A88810 STATE OF FLORIDA VS DHAITI, ROODY

        State is appealing my withhold based upon alternative sentencing 948.02 (Mcgrill) scheme. Not sure if that is us or WPB but here is the transcript…

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      Don’t get too full of yourself.
      With Duffy and May pinch hitting, the altzheimer riddled baliffs could have argued and won this.

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      we have come a long way since Renee and the PDO tried to get Duffy on trumped up charges of making dumb comments at judicial college…pdo loves her now

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      Duffy is one of the few able judges in Broward that isn’t anything but an lazy, incompetent blowhard

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    Some people with little teeny, tiny egos and little teeny, tiny whatever’s just can’t stand to see another person get any credit at all. No one thinks that APD Sanders did this all by himself. Of course, there was a judge involved. Of course there were appellate attorneys involved. He wrote the motion and pressed it. WTF is wrong with you that you can’t celebrate that? Congrats to all of them.

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    Defense does a great job better than all of you put together and you are criticizing him? What is wrong with our profession? The guy saves a defendant from being a convicted felon and all of you are sitting on here ragging on him. You need to look in the mirror and try to figure out what is wrong with you and when you stop being a lawyer and caring about your clients. So sad that we’ve come to this. Good for him and I’m on the other side!

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          FORMER BROWARD JUDGE aka XANNY QUEEN aka SLEEPWALKER runs aground in judge’s parking lot, then hides out in Courthouse ladies room when confronted by reporter …
          You got hand it to her: She at least showed up for work ! That’s a step in the right direction in Broward.

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        This core of the problem is with the state. End of story. Do Joel Silverslick, Mike horrifitz and staci duhrenzo not have anything better to do with their time and the taxpayers money. Why is Pryor allowing this to continue. Why is Ruby protesting. Wtf is wrong with people. Shame on the State of Florida. Shame on you all.

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    Now get out there and teach those druggies first hand what the Rule of Lenity’s all about in Broward County

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    Don’t act so surprised—I told everyone I’d be State Attorney for life when I debated that knucklehead who kept quoting Finkelstein

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    Remember to cross off Satz and write in Pryor on your boilerplate bitch motions that I’ll be dumping in the incinerator at lights out

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    WAY TO GO AUSTYN!!!! VERY DISAPPOINTED IN RUBY FOR TRYING TO APPEAL THIS, THAT’S SO ODD & UNLIKE HER, GIVEN THAT SHE RAN FOR PUBLIC DEFENDER AND WAS ONE HERSELF, WOULD THINK SHE WOULDN’T WANT TO MAKE SOMEONE AN ADJUDICATED FELON OVER DRUG POSSESSION.

    ONCE AGAIN, WAY TO GO AUSTYN. SERIOUSLY THIS IS AWESOME

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    1. Not a lowdown lazy docket blocker. Need a hearing? Sets them quick and easy. No form over substance. It’s not rocket science and she’s not racing off the bench to do anything but her job.
    2. Gutsy rulings. It’s called leadership. Not afraid to stand up to the SAO on their cowardly CYA ‘pound of flesh’ prosecutions of the non-violent. Not afraid to follow the statute on VFOSC and hold on the spot Dangers for techs. Not afraid to max a deserving violent sleazoid either.
    3. Tries cases every day. No trial tax. Bad guys get launched while everyone gets a fair trial.

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      The State won’t appeal her on the danger hearings. They don’t want the caselaw. They’ve got the other Judges cowed and in line. It stinks.

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        Here is a little more Austyn research–The State could not appeal even if they wanted to because:

        What is more, in State v. Folkes, the “[d]efendant admitted violating conditions of his community control” and “[r]ather than revoke community control and sentence defendant to prison, the trial court elected to continue community control but modify conditions.” 190 So.3d 118, 119 (Fla. 4 DCA 2015). When the State appealed the Court’s reinstatement disposition, “insisting the statutes governing a ‘violent felony offender of special concern’ do not allow continuation of defendant’s community control absent certain factual findings which were not made here” the Fourth District felt “compelled to dismiss the instant appeal.” Id. This was so, because “[t]he State’s right to appeal in a criminal case must be ‘expressly conferred by statute.’” Id. (citing State v. Maddex, 159 So.3d 267, 269 (Fla. 4 DCA 2015); Exposito v. State, 891 So.2d 525, 527 (Fla.2004). Because “[a]n order reinstating, continuing, or modifying a defendant’s probation or community control, entered following a violation of the terms, is not, however, a ‘sentence’ within the meaning of the statute.” Id. (citing lack of appeal power conferred by Section 924.07(1)(e)(i), Fla. Stat. (2014); State v. Bell, 854. So.2d 686, 689-90 (Fla. 5 DCA 2003); Section 948.06(1) Fla. Stat.)
        Authorities agree that “[i]t is well settled that the State may not appeal an order modifying community control because a modification of community control does not constitute a sentence.” Id. (citing State v. Heddon, 840 So.2d 439, 440 (Fla. 5 DCA 2003). See also State v. Gray, for the Fourth District’s treatment of “dismissing State’s appeal from order modifying, rather than revoking, defendant’s community control and reasoning that court does not ‘sentence’ a defendant when it modifies probation or community control.” Id. (citing 721 So.2d 370, 370-71 (Fla. 4DCA 1998)).

        Indeed, “[n]othing in the statutes requires that a separate evidentiary hearing take place.” Smith v. State, 248 So. 3d 235, 237 (Fla. 4 DCA 2018). In Smith, “[a]ppellant Jimeal Smith appeal[ed] the trial court’s failure to conduct a separate evidentiary hearing before finding him to be a danger to the community as a violent offender of special concern after revoking his probation. He assert[d] that the lack of such an evidentiary hearing in this case requires reversal. Id. at 236 (“We disagree, and affirm.”). This understanding is supported by legislative history.

        See State v. Martinez:
        The bill does not specify that a hearing is required for the court to make its dangerousness determination, but does require that the finding of dangerousness be made based upon a preponderance of the evidence. The bill sets forth a number of factors that may be considered by the court in determining dangerousness, and requires the court to enter a written order in sup-port of its findings.

        103 So. 3d 1013, 1017 n. 5 (Fla. 3d DCA 2012) (emphasis added); (Fla. S. Judiciary Comm., CS for SB 146 (2007) Staff Analysis (Feb. 19, 2007) (on file with State Archives of Florida)).

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      Canon 1
      A Judge Shall Uphold the Integrity And Independence of the Judiciary

      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

      COMMENTARY

      Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.

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