Full Opinion

Third District Court of Appeal State of Florida Opinion filed July 22, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-2114 Lower Tribunal Nos. 12-8163, 12-10368, 13-16087, 15-23883, 10-2641 ________________ Brenda Calana-Reinoso, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch, Judge. Law Offices of Aubrey Webb, P.A., and Aubrey Q. Webb, for appellant. Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee. Before EMAS, C.J., and LOGUE and GORDO, JJ. EMAS, C.J. Brenda Calana-Reinoso appeals from an order revoking her community control, and sentencing her to 175.30 months in prison. On appeal, she contends the trial court erred in denying her request for an interpreter, in failing to order a competency evaluation, and in entering a revocation order that included findings unsupported by the evidence and findings that conflicted with the trial court’s earlier oral pronouncement. For the reasons that follow, we affirm but remand for entry of an amended order of revocation of community control. Denial of the Request for an Interpreter We review the denial of a request for the services of an interpreter under an abuse of discretion standard. Flores v. State, 406 So. 2d 58, 59 (Fla. 3d DCA 1981); Monte v. State, 443 So. 2d 339, 342 (Fla. 2d DCA 1983) (noting: “We emphasize, as we must, that the decision to appoint an interpreter in accordance with section 90.606, Florida Statutes (1981), is a matter largely within the trial court's discretion, and the determination of the particular interpreter's qualifications will not be reversed absent a clear abuse of discretion” (citations omitted)). At the outset, we emphasize that trial courts should proceed cautiously before denying a defendant’s request for the services of an interpreter, as a “non-English- speaking defendant has the right to an interpreter, a right grounded on due process and confrontation considerations of the Constitution.” Tehrani v. State, 764 So. 2d 895, 898 (Fla. 2000) (citing Suarez v. State, 481 So. 2d 1201, 1203 (Fla. 1985)); § 2 90.606, Fla. Stat. (2018) (providing: “When a judge determines that a witness cannot hear or understand the English language, or cannot express himself or herself in English sufficiently to be understood, an interpreter who is duly qualified to interpret for the witness shall be sworn to do so.”) Nevertheless, a review of the record in this case leads us to conclude that the trial court did not abuse its discretion. As we describe in greater detail below, the record reveals Calana-Reinoso had appeared before this same trial court judge on many prior occasions, and had engaged the court in English without any difficulty and without asking for an interpreter. Likewise, there was no indication that her counsel had difficulty in communicating with her in English, nor any record evidence that her counsel had requested the services of the interpreter at any of the prior hearings. Indeed, in the final hearing at issue, defense counsel never requested the services of an interpreter for his client. On the original date of the scheduled community control violation hearing, defense counsel asked the court if Calana-Reinoso could “address the court herself” to discuss her dissatisfaction with a plea offer extended by the State. The court and Calana-Reinoso then engaged in a discussion that covers four transcript pages. Calana-Reinoso spoke in English throughout that discussion, and the transcript reflects no difficulty in her doing so. Her statements to the court were coherent, 3 contextually appropriate, and reflected an understanding of the court’s statements to her. The record belies any claim of difficulty with the English language. After Calana-Reinoso’s discussion with the trial court, plea negotiations broke down and the case proceeded to the community control violation hearing, which began with the testimony of the detective who investigated the crimes that served as one of the bases for the violation of community control. The detective testified that, during the investigation, he determined that the fingerprint found at the scene of the burglary matched that of the defendant, and that he met with and interviewed the victims regarding the burglary, theft and criminal mischief. He also testified that the victims provided handwritten statements and executed affidavits attesting to the relevant facts regarding the crimes, i.e., that they did not know the defendant, and that the defendant did not have permission to enter, or remove items from, their house. The statements and affidavits were admitted into evidence without objection. At no time during the hearing did Calana-Reinoso or her counsel request an interpreter or indicate that Calana-Reinoso had any difficulty understanding the prosecutor’s questions or the witnesses’ testimony. The hearing was then suspended and scheduled to resume two weeks later. At the hearing two weeks later, the parties had renewed their plea discussions and defense counsel announced his client wished to accept a plea. The trial court began the plea colloquy with Calana-Reinoso: 4 COURT: Ms. Reinoso, you speak English? DEFENDANT: Yes. COURT: Are you comfortable in the English language? DEFENDANT: Yes. Thereafter, the court warned her of the proceeding’s significance, that she was under oath, and that her answers had to be truthful under penalty of perjury. Calana- Reinoso answered that she understood each of these. The court announced the terms of the negotiated plea. After further discussion however, the plea colloquy abruptly stopped, and the defense asked to reschedule the proceedings to permit Calana- Reinoso to “get her affairs in order.” The court accommodated the request and the case was reset yet again. Ultimately, the plea never materialized, and after several further hearings, the parties returned to court to complete the community control revocation hearing. At that hearing, defense counsel sought to withdraw, advising that he and his client had irreconcilable differences. The court denied the motion and resumed the revocation hearing. The State called Calana-Reinoso as its next (and, as it turned out, its final) witness, to establish that she entered a plea, was placed first on probation and later modified to community control, she was on community control at the time of the alleged burglary offense, and she left the residential treatment 5 program without completing it. Calana-Reinoso was already sworn in and answering the prosecutor’s questions when the following occurred: STATE: Okay, and you took a plea on that case to probation? DEFENDANT: Correct. Can we get a Spanish translator, please. COURT: You speak perfect English. DEFENDANT: No, I speak better in Spanish, that’s my first language. I would feel more comfortable. COURT: You have been before me for years and years, and you have never had the slightest difficulty. DEFENDANT: I would feel better in Spanish. COURT: You’ve never asked for an interpreter before. DEFENDANT: I would feel better in Spanish. The court denied this request, determining that the services of an interpreter were unnecessary. Thereafter, the testimony continued without difficulty, and in fact the State asked Calana-Reinoso to read aloud several paragraphs from the 6 probation orders she signed in 2011. The transcript reflects she did so without difficulty. 1 We recognize that, as a general rule and given the attendant due process concerns, if a trial court has reason to believe that the accused cannot understand English or cannot express herself in English sufficiently to be understood, the trial court should accommodate a request for the services of an interpreter. See, e.g., § 90.606, Fla. Stat. (2019); Tehrani, 764 So. 2d 895. In the instant case, however, the extensive record of colloquies, discussions and prior interactions between this trial court judge and Calana-Reinoso, as well as proceedings in which Calana-Reinoso actively participated without the need or request for an interpreter, support the trial court’s determination. We also rely upon the trial court’s observation (that finds support in the record) that Calana-Reinoso spoke “perfect English.” See Larias v. State, 528 So. 2d 944 (Fla. 3d DCA 1988). We thus conclude no abuse of discretion has been established.2 1 During the State’s questioning, Calana-Reinoso even corrected the prosecutor by noting that, at the time of the alleged violations, she was no longer on probation but rather, was on community control. 2 In like fashion, and following a review of the record, we find no abuse of discretion in the trial court’s denial of the request for a competency evaluation. See Losada v. State, 260 So. 3d 1156, 1161 (Fla. 3d DCA 2018). See also Stephens v. State, No. 3D18-247, 2020 WL 2176808 at *5 (Fla. 3d DCA 2020) (noting that “the trial court’s independent obligation to order a competency hearing does not arise ‘if there is nothing to alert the court that the defendant may lack competency’”) (quoting Laster v. State, 212 So. 3d 392, 394 (Fla. 4th DCA 2017)) (citations omitted); Fla. R. Crim. P. 3.211(a)(1) (describing competence to proceed as whether “the 7 Order of Revocation of Community Control In her final claim, Calana-Reinoso contends the trial court’s written order of revocation conflicts with the oral pronouncement made at the conclusion of the community control violation hearing, and that several of the findings in the revocation order are not supported by evidence presented at the hearing. We find merit in the last of these claims. The order of revocation finds that the State established Calana-Reinoso committed nine separate violations: five technical violations (changing residence without the consent of her community control officer; failing to complete residential treatment program; failing to make restitution; failing to pay costs of supervision; and failing to pay drug test fees) and four substantive violations (committing the crimes of burglary, grand theft, criminal mischief on November 1, 2015 and committing the crime of robbery on October 26, 2016). The evidence at the hearing supported the trial court’s finding as to two of the technical violations (changing residence without permission and failing to complete the residential treatment program) and three of the substantive violations (burglary, grand theft and criminal mischief). However, and as Calana-Reinoso correctly asserts, no evidence was presented at the hearing to support a finding that she violated her community control defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.”) 8 by committing robbery on October 26, 2016, or by failing to pay restitution, costs of supervision, or drug test fees. The one substantive violation and three technical violations were erroneously included in the order of revocation of community control. We affirm in all respects, holding no abuse of discretion has been established in denying the request for an interpreter, and further holding that the record evidence supports the trial court’s determination that Calana-Reinoso willfully and substantially violated her community control by committing the offenses of burglary, grand theft and criminal mischief, by changing her residence without permission and by failing to complete the residential treatment program.3 We affirm but remand to the trial court for the sole purpose of entering an amended order of revocation of community control reflecting only those five violations proven, and striking the three technical violations and one substantive violation, described earlier, that were not supported by any evidence presented at the revocation hearing. See Duquesne v. State, 242 So. 3d 1183, 1187 (Fla. 3d DCA 2018) (affirming but remanding under analogous circumstances, noting that “‘[w]here a violation of a condition of community control is reversed on appeal but other violations remain,’ the appellate court can ‘remand to the trial court to strike 3 We find no merit in the other arguments raised on appeal. 9 the erroneous violation’ where the remaining violations constitute substantial violations and were sufficient to support the revocation” (citation omitted)).4 Affirmed and remanded with directions. 4 The sentence imposed by the trial court (175.3 months in State prison) represents the lowest permissible sentence under the guidelines, and no motion for downward departure was filed. Therefore, a resentencing hearing is not required. See, e.g., Wallace v. State, 193 So. 3d 64 (Fla. 3d DCA 2016). 10