NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

CAINETH JOSHUA ORR, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D15-5131 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed December 7, 2016. 

Appeal from the Circuit Court for Lee 

County; Bruce E. Kyle, Judge. 

Howard L. Dimmig, II, Public Defender, 

and Robert D. Rosen, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Gillian N. Leytham, 

Assistant Attorney General, Tampa, for 

Appellee. 

MORRIS, Judge. 

 Caineth Orr appeals his three convictions and sentences, specifically 

challenging his sentence of 364 days in jail followed by two years' drug offender 
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probation for the offense of resisting an officer with violence.

1 He argues that his 

sentence of drug offender probation is unlawful because his offense of resisting an 

officer with violence did not qualify for drug offender probation. We agree and reverse 

and remand for further proceedings. 

 Section 948.20(1), Florida Statutes (2014), provides when a trial court 

may place a defendant on drug offender probation: 

If it appears to the court upon a hearing that the defendant is

a chronic substance abuser whose criminal conduct is a 

violation of s. 893.13(2)(a) or (6)(a), or other nonviolent 

felony if such nonviolent felony is committed on or after July 

1, 2009, and notwithstanding s. 921.0024 the defendant's 

Criminal Punishment Code scoresheet total sentence points 

are 60 points or fewer, the court may either adjudge the 

defendant guilty or stay and withhold the adjudication of 

guilt. In either case, the court may also stay and withhold 

the imposition of sentence and place the defendant on drug 

offender probation or into a postadjudicatory treatmentbased drug court program if the defendant otherwise 

qualifies. As used in this section, the term "nonviolent 

felony" means a third[-]degree felony violation under chapter 

810 or any other felony offense that is not a forcible felony 

as defined in s. 776.08. 

Thus, to qualify for drug offender probation, the defendant's offense must be a violation 

of section 893.13(2)(a) or (6)(a), a third-degree felony under chapter 810, or a felony 

that is not a forcible felony under section 776.08. Orr's offense is resisting an officer 

with violence which is prohibited by section 843.01, Florida Statutes (2014), and is 

therefore not a violation of section 893.13(2)(a) or (6)(a) or chapter 810. See State v. 

Roper, 915 So. 2d 622, 623-24 (Fla. 5th DCA 2005) (holding that trial court did not have 

 1Orr was convicted after a jury trial. He was also convicted of possession 

of marijuana (twenty grams or less), § 893.13(6)(b), Fla. Stat. (2014), and possession of 

drug paraphernalia, § 893.147(1). He was sentenced to time served on both of those 

misdemeanor charges. 
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discretion to sentence defendant to drug offender probation because applicable version 

of drug offender statute provided for such probation only for "violations of sections 

893.13(2)(a) or (6)(a)" and defendant was convicted of section 893.13(1)(a)(1)); cf. 

Sutton v. State, 128 So. 3d 957, 958-59 (Fla. 2d DCA 2013) (holding that trial court had 

discretion to place defendant on drug offender probation where he was convicted of 

third-degree felony of burglary under section 810.02, Florida Statutes (2010), and 

amended version of drug offender statute "specifically include[d] third-degree felonies 

under chapter 810 in its definition of nonviolent felonies"). 

Moreover, Orr's offense does not constitute a nonviolent felony as that 

term is defined in section 948.20(1). The definition of nonviolent felony excludes 

offenses that constitute forcible felonies under section 776.08. The list of forcible 

felonies in section 776.08 includes "any other felony which involves the use or threat of 

physical force or violence against any individual." This court has held that the offense of 

resisting an officer with violence involves the use or threat of physical force or violence 

because "[o]ne of the elements of resisting arrest with violence under section 843.01 is 

either offering to do violence or actually doing it." Walker v. State, 965 So. 2d 1281, 

1284 (Fla. 2d DCA 2007). Thus, resisting an officer with violence is a forcible felony, 

and it therefore does not constitute a nonviolent felony that qualifies for drug offender 

probation under section 948.20(1). 

The State argues that even if Orr's offense does not qualify for drug 

offender probation, the trial court was authorized to impose drug offender probation 

because it is an alternative to the sentencing guidelines. See Jones v. State, 813 So. 

2d 22, 24-25 (Fla. 2002) (holding that drug offender probation "provides an alternative 
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sentencing scheme for drug abusers that is outside of the sentencing guidelines" and 

that the laws prohibiting downward departure sentences based on substance abuse or 

addiction do not apply when the trial court chooses to impose drug offender probation 

for a qualifying offense). The State contends that the language of section 948.20(1) 

applies only when the trial court imposes drug offender probation in lieu of a sentence, 

not when the trial court imposes such probation in addition to a jail or prison sentence. 

This argument is not supported by Jones or the language in section 948.20, which 

authorizes the trial court to impose drug offender probation only under certain 

circumstances for qualifying offenses. As noted above, drug offender probation was not 

an option for the offense of resisting an officer with violence. See Lawson v. State, 969 

So. 2d 222, 231 (Fla. 2007) ("There are three avenues in which the trial court may order 

a probationer to complete a drug treatment program: (1) as a special condition of 

ordinary probation; (2) as a condition of drug offender probation under section 948.20, 

Florida Statutes (2005); or (3) as part of a 'treatment based drug court program' under 

section 397.334, Florida Statutes (2005)."). 

Accordingly, we reverse the portion of Orr's sentence imposing drug 

offender probation for the offense of resisting an officer with violence. On remand, the 

trial court may resentence Orr to regular probation with special conditions that it deems 

appropriate. See Redmond v. State, 970 So. 2d 915, 916 (Fla. 5th DCA 2007) (holding 

that trial court was not authorized to impose drug offender probation for the offense of 

delivery of cocaine under the 2005 version of section 948.20 but that on remand, the 

trial court may impose regular probation with "special conditions as it deems 

appropriate[,] provided that they are reasonably related to the offense and promote the 
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rehabilitation of the defendant or the protection of the public"); see also Lawson, 969 

So. 2d at 231-32 (recognizing that the trial court may order a probationer to complete a 

drug treatment program as a special condition of ordinary probation). 

Affirmed in part; reversed in part; remanded. 

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.