FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-0478

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DANIEL K. MAXWELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Francis Allman, Judge.

April 10, 2024

TANENBAUM, J.

This appeal, at first glance, seemed to seek review of the trial 

court’s order denying Daniel Maxwell’s motion to withdraw his socalled “plea” to alleged violations of the terms of his probation—a 

motion he filed about three weeks following the trial court’s 

revocation of his probation and imposition of a new sentence.

Maxwell filed his notice of appeal within thirty days of the order 

denying his motion, but more than thirty days after rendition of 

the revocation and sentencing orders. As we explain below, 

however, an admission to an alleged probation violation is not 

formally a “plea,” as that term is used in Florida Rule of Criminal 

Procedure 3.170(l) and Florida Rules of Appellate Procedure

9.020(h)(1)(I) and 9.140(b)(2)(A)(ii)c. That means the motion to 

withdraw Maxwell filed did not toll the rendition date of the 

revocation and sentencing orders, and his current appeal as to 
2

those orders is untimely. We asked Maxwell to address whether 

the appeal instead should be considered as one travelling under 

Florida Rule of Appellate Procedure 9.141, which covers appeals 

from orders on post-conviction motions. While the State agreed 

with this approach, Maxwell opposed it and asked that his appeal 

be treated as timely filed. Maxwell independently may have a postdecretal claim regarding the legality of his resentencing following 

the revocation of his probation, but we cannot reconstrue the 

motion Maxwell filed below as asserting such a claim. Cf. Fla. R. 

Crim. P. 3.850(c) (setting out required contents of a motion filed 

under the rule). All we can do here is dismiss the appeal before us 

as untimely.

I

Maxwell served time in prison after a trial court adjudicated 

him guilty of witness tampering and felony battery based on a plea 

of nolo contendere back in 2013.1 The sentence on each count was 

eighteen months in prison, the sentences running concurrently. A 

term of forty-two months of probation followed. In 2018, sometime 

after Maxwell began serving his probation, his supervising officer 

charged him with violating the conditions of his probation (“VOP”) 

by breaking the law again. Pursuant to an agreement with the 

State, Maxwell admitted that he had violated probation. The trial 

court revoked probation and imposed a new sentence of seventyone months in prison, giving stipulated credit for jail time served

and directing the Department of Corrections to calculate the 

appropriate credit for the time Maxwell had already served on the 

convictions under section 921.0017, Florida Statutes. Maxwell did 

not appeal.

About eight months later, Maxwell sought clarification 

regarding his sentence. The trial court in response rendered a 

corrected sentence to reflect that his new sentences were to run 

concurrently with another sentence. A week after that, the trial 

court once again corrected the sentence. Twenty-eight days later, 

Maxwell filed a “Motion to Withdraw Plea.” This filing came ten 

months after the trial court originally had imposed the modified 

1 Maxwell moved to withdraw that plea in 2014. The trial 

court denied that motion. 
3

sentence based on the probation violation. In his motion, Maxwell 

alleged the following: 1) that he was incompetent at the time of his 

admission; 2) that the court failed to “address [his] demands”; 3) 

that his attorney refused to provide him with discovery; 4) that he 

believed he was going to be processed and released immediately 

upon arriving to the Department of Corrections; 5) that his 

scoresheet contained errors; and 6) that he previously had 

submitted Bar complaints against his court-appointed attorney, 

which allegedly created a conflict of interest. The trial court denied 

the motion six months later without a hearing. Maxwell filed this 

appeal within thirty days of rendition of that denial.

II

Confusion arises when courts persist in the loose use of the 

term “plea” in the context of VOP proceedings. There simply is no 

such thing as a plea to a charged VOP. The principal statute 

governing VOPs, section 948.06, Florida Statutes, does not refer to 

such a plea. Rather, the statute gives a probationer the option to 

“admit” that the charged VOP is true, or to not admit it to be true.

§ 948.06(2)(a), Fla. Stat.; see also Fla. R. Crim. P. 3.790(b) (setting 

out procedure by which a probationer either “admits” the charged 

violation to be true or does not “admit”). 

Pleas do not occur after disposition in a criminal case. A 

defendant will enter his “plea” at the beginning of a criminal 

matter—at arraignment, typically—but at all events, before trial. 

See Fla. R. Crim. P. 3.160 (“Arraignment”); Fla. R. Crim. P. 

3.170(a) (identifying three types of pleas regarding a criminal 

“charge”—“not guilty, guilty, or, with the consent of the court, no 

contest”—and requiring that “[e]very plea [] be entered of record”); 

Fla. R. Crim. P. 3.170(b) (allowing for “plea of guilty or nolo 

contendere to any and all charges pending against [the defendant] 

in the State of Florida over which the court would have 

jurisdiction”); cf. Fla. R. Crim. P. 3.170(f), (l) (treating guilty and 

no-contest pleas as coming before sentencing); Fla. R. Crim. P. 

3.171 (treating plea negotiations and agreements as coming before 

sentencing).

For example, if a defendant pleads not guilty and persists in 

that plea, there will be a trial on the charges filed in the criminal 

case. See Fla. R. Crim. P. 3.170(e) (providing that a “plea of not 
4

guilty is a denial of every material allegation in the indictment or 

information on which the defendant is to be tried”). Alternatively, 

if a defendant pleads guilty or nolo contendere, changes his plea to 

one of these before trial, or is found guilty at trial, there will be a 

judgment of conviction. See § 921.0021(2), Fla. Stat. (defining 

“conviction” to mean “a determination of guilt that is the result of 

a plea or a trial, regardless of whether adjudication is withheld” 

(emphasis supplied)); Fla. R. Crim. P. 3.650 (defining “judgment” 

to mean “the adjudication by the court that the defendant is guilty 

or not guilty”); Fla. R. Crim. P. 3.670 (providing for rendition of 

“judgment of guilty” upon a finding of guilt, but allowing for a 

“withhold [of] an adjudication of guilt if the judge places the 

defendant on probation”). 

The point here is that a plea—one way or the other—precedes 

a judgment of conviction, which means a plea necessarily precedes

imposition of probation. That is, there cannot be the imposition of 

probation without a formal determination of guilt, which always 

comes after a defendant enters his plea to the criminal charges 

filed against him. See § 948.01(1), Fla. Stat. (authorizing probation 

as an alternative sentencing disposition for “a defendant in a 

criminal case, except for an offense punishable by death, who has 

been found guilty by the verdict of a jury, has entered a plea of 

guilty or a plea of nolo contendere, or has been found guilty by the 

court trying the case without a jury.” (emphasis supplied)); 

§ 921.187(1), Fla. Stat. (authorizing probation as component of 

sentencing “alternatives provided in this section for the disposition

of criminal cases” (emphasis supplied)); cf. Fla. R. Crim. P. 3.790(a) 

(treating probation as part of sentencing).

To say that a trial court took a plea from a defendant after 

disposition of a criminal case—regardless of whether adjudication 

has been withheld—makes no sense because, at that point, the 

defendant’s guilt as to the criminal charges in the case had already 

been formally determined. Cf. Fla. R. Crim. P. 3.172(c)(4), (5) 

(requiring that trial court ensure that a defendant wishing to plead 

guilty or nolo contendere understands that such plea waives his 

right to further litigate the question of his guilt and to have a trial 

on the criminal charges against him). By the time a defendant 

finds himself on probation in a criminal case, there no longer is a 

dispute over his guilt, so nothing left to plead to. Cf. Peters v. State, 
5

984 So. 2d 1227, 1232 (Fla. 2008) (acknowledging “that while 

probation is not necessarily a sentence, the criminal prosecution 

has ended with either a sentence of incarceration or a suspended 

sentence of probation”).

This difference in terminology in the VOP context is 

commensurate with where in the criminal process probation falls. 

A VOP proceeding does not involve a new question of criminal 

culpability that could lead to another formal adjudication of guilt. 

Put another way, a VOP affidavit does not initiate a separate 

process by which a criminal conviction is sought. See Id. at 1233 

(“Because a probationer has already been found guilty of the crime 

charged before being placed on probation or under community 

supervision, the revocation proceeding implicates only a limited,

conditional liberty interest rather than the absolute liberty 

interest enjoyed by a criminal defendant prior to trial.”); Gagnon 

v. Scarpelli, 411 U.S. 778, 782 (1973) (“Probation revocation, like 

parole revocation, is not a stage of a criminal prosecution, but does 

result in a loss of liberty.”); cf. Burns v. United States, 287 U.S. 

216, 222 (1932) (“The question, then, in the case of the revocation 

of probation, is not one of formal procedure either with respect to 

notice or specification of charges or a trial upon charges. The 

question is simply whether there has been an abuse of discretion 

and is to be determined in accordance with familiar principles 

governing the exercise of judicial discretion.”).

Probation, instead, is more properly considered as a 

component of sentencing. Cf. Peters 984 So. 2d at 1231–32 (noting 

that the purpose of probation is “rehabilitation of a party whose 

guilt has been established” and acknowledging “that while a 

defendant is not incarcerated when placed on probation, the 

defendant is nonetheless serving a type of suspended sentence”);

Green v. State, 463 So. 2d 1139, 1140 (Fla. 1985) (agreeing that a 

probation violation proceeding “constitutes a deferred sentencing 

proceeding”); Bernhardt v. State, 288 So. 2d 490, 495 (Fla. 1974)

(explaining that the “underlying concept of probation is 

rehabilitation rather than punishment and presupposes the fact 

that probationer is not in prison confinement”). To be more specific, 

when a trial court imposes a “probationary split sentence,” as it did 

here, the court stops short of giving the defendant the maximum 

authorized sentence. Instead, the court in essence utilizes
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probation as a mechanism to assess the defendant’s “amenability 

to reform” from his conduct after the original sentencing. Poore v. 

State, 531 So. 2d 161, 163 (Fla. 1988), (approvingly quoting 

Williams v. Wainwright, 650 F.2d 58, 61 (5th Cir. 1981), for the 

proposition that an increased sentence may be “imposed upon the 

revocation of probation . . . based upon the defendant’s subsequent 

conduct demonstrating his lack of amenability to reform”); cf. id.

at 164–65 (treating a violation of probation as a new, relevant 

sentencing fact that may justify an increased sentence when a 

“probationary split sentence” had been imposed).

As part of the sentencing continuum, probation allows the 

trial court the flexibility to try out varying (and likely 

progressively increased) lengths of incarceration, up to the 

statutory maximum, to find, cumulatively, a bespoke period of 

incarceration appropriate to the defendant’s “past life, health, 

habits, conduct, and mental and moral propensities.” Williams v. 

New York, 337 U.S. 241, 245 (1949); see also id. at 247, 249 

(explaining how probation can serve as an “investigation 

technique[]” that can help a trial judge select “an appropriate 

sentence” based on “the fullest information possible concerning the 

defendant’s life and characteristics . . . rather than on guesswork 

and inadequate information”); cf. Pa. ex rel. Sullivan v. Ashe, 302 

U.S. 51, 55 (1937) (explaining that in determining a sentence, 

“justice generally requires . . . that there be taken into account the 

circumstances of the offense together with the character and 

propensities of the offender,” such that the defendant’s “past may 

be taken to indicate his present purposes and tendencies and 

significantly to suggest the period of restraint and the kind of 

discipline that ought to be imposed upon him”).

Here, then, we see the true service that probation provides to 

the sentencing endeavor. It allows the trial court to impose a 

prison sentence based on all the individualized information 

available to it at the time regarding the defendant; and then to 

constitutionally “impos[e] a new sentence, whether greater or less 

than the original sentence,” based on the defendant’s conduct 

while on probation that might “throw[] new light upon the 

defendant’s life, health, habits, conduct, and mental and moral 

propensities.” North Carolina v. Pearce, 395 U.S. 711, 723 (1969)
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(internal quotation and citation omitted). The Supreme Court 

continued as follows:

The freedom of a sentencing judge to consider the 

defendant’s conduct subsequent to the first conviction in 

imposing a new sentence is no more than consonant with 

the principle . . . that a State may adopt the prevalent 

modern philosophy of penology that the punishment 

should fit the offender and not merely the crime.

Id. (internal quotation and citation omitted). To be clear here: The 

modified sentence imposed on a revocation of probation is 

appropriately enhanced punishment for the original offense of 

conviction, based on new information gleaned from the defendant’s 

behavior while on probation; it is not punishment for the conduct 

determined to be a violation of probation.

As we already mentioned, when we look at Maxwell’s case, we 

see that the only plea Maxwell entered in this case occurred way 

back in 2013—when he pleaded nolo contendere to the charges 

reflected in the information. Based on that plea, the trial court 

adjudicated Maxwell guilty and imposed a soi-disant

“probationary split sentence”—a prison time of specified duration, 

followed by a term of probation. See Poore, 531 So. 2d at 164 

(describing “a ‘probationary split sentence’ consisting of a period of 

confinement, none of which is suspended, followed by a period of 

probation” as an authorized “sentencing alternative in Florida”);

see also Glass v. State, 574 So. 2d 1099, 1102 (Fla. 1991)

(reaffirming the court’s “position that courts are authorized to 

impose probationary split sentences”); but cf. § 948.012, Fla. Stat.

He sought way back to withdraw that plea, and when the trial 

court denied the request, the adjudication of guilt stood.

Later, when the probation officer charged Maxwell with 

violating the conditions of his probation, the officer initiated the 

process spelled out in section 948.06—and not a new criminal 

prosecution. See § 948.06(1)(a)–(b), Fla. Stat. That process, in turn, 

does not include an arraignment or entry of a plea to the charged 

violations. When Maxwell was brought before the trial court on a 

VOP warrant, the trial court simply “advise[d] him [] of such 

charge of violation,” at which point Maxwell had the option to 

“admit” that the charge was true, or not (rather than to plead 
8

guilty or not guilty). Id. (2)(a); see also Fla. R. Crim. P. 3.790(b).

For a violation, the statute authorizes resentencing (read:

imposition of an increased term of incarceration or modification of 

other terms of the original sentence) on the same conviction, and 

there is no double-jeopardy problem as long as the new, asmodified sentence—which has the effect of increasing the total 

incarceration above what was originally imposed on the offense of 

conviction—is not “based solely on the same facts at issue” before 

the trial court at the time of the original sentence. Poore, 531 So. 

2d at 163 (citing Pearce, 395 U.S. 711 (1969)).

Key here is that the enhanced sentence imposed on Maxwell

under section 948.06 truly must be based on new information 

gleaned from the defendant’s behavior while on probation, not 

merely on a trial judge’s change of heart. That is, there must be “a 

relevant new fact not previously considered” before the trial court 

“constitutionally is permitted to impose a greater sentence” under 

section 948.06. Id. at 164. The statutory authorization for 

resentencing on a revocation is contingent on the proper 

demonstration of this new relevant fact, “not previously 

considered,” by sufficient evidence. Id. Maxwell’s violation of the 

conditions of his probation, of course, would be that relevant new 

fact.

Indeed, Maxwell entered an admission to the truthfulness of 

the charged violation. That admission did not change Maxwell’s 

legal status in the criminal case, as he already had been 

adjudicated guilty in 2013. The only legal effect of that admission 

is that it supported the trial court’s authority at that point to 

resentence Maxwell to any term of incarceration that “it might 

have originally imposed.” § 948.06(2)(b), (e), Fla. Stat.; but cf. State 

v. Rabedeau, 2 So. 3d 191, 193 (Fla. 2009) (noting, in a probation 

revocation context, that a defendant sentenced upon conviction of 

a crime who “serves some portion of that sentence . . . is entitled to 

receive credit for the actual service of that sentence, or any portion 

thereof, in a resentencing for the same crime” (emphasis supplied)).

This is not to say that an admission in a VOP is legally—or 

constitutionally—insignificant. Though the trial court has broad 

discretion to determine whether to revoke probation and impose a 

new sentence, “this discretionary power must be exercised in 
9

accordance with certain due process requirements.” Bernhardt,

288 So. 2d at 495; see also Black v. Romano, 471 U.S. 606, 610 

(1985) (“The Due Process Clause of the Fourteenth Amendment 

imposes procedural and substantive limits on the revocation of the 

conditional liberty created by probation.”). The probationer, for 

instance, is entitled to the provision of effective assistance of 

counsel “before he is required to respond in any manner to the 

revocation charges.” State v. Hicks, 478 So. 2d 22, 23 (Fla. 1985).

There also must be a hearing at which evidence is presented that 

is “sufficient to satisfy the conscience of the court that a condition 

of probation has been violated.” Bernhardt, 288 So. 2d at 495; see 

also Gagnon, 411 U.S. at 786 (enumerating the minimum dueprocess requirements for a probation-violation proceeding); 

Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (“This hearing must 

be the basis for more than determining probable cause; it must 

lead to a final evaluation of any contested relevant facts and 

consideration of whether the facts as determined warrant 

revocation.”); cf. Burns, 287 U.S. at 223 (“While probation is a 

matter of grace, the probationer is entitled to fair treatment, and 

is not to be made the victim of whim or caprice.”).

When Maxwell “admit[ted] to be true” the charged VOP, then, 

he effectively waived this process that ordinarily would be due him 

for determination of that new sentencing fact. Cf. § 948.06(b), (d), 

Fla. Stat. (authorizing revocation upon admission but requiring a 

hearing if the violation is not admitted); see generally United 

States v. Olano, 507 U.S. 725, 733 (1993) (explaining that 

“forfeiture is the failure to make the timely assertion of a right” 

but “waiver is the intentional relinquishment or abandonment of 

a known right” (internal quotation and citation omitted)). An 

admission has the effect of waiving the probationer’s entitlement 

to “an opportunity to be fully heard on his or her behalf in person 

or by counsel.” § 948.06(2)(d), Fla. Stat. It also waives his right to 

require the State “establish by greater weight of the evidence that 

the violation of probation occurred.” Russell v. State, 982 So. 2d 

642, 646 (Fla. 2008). In the light of these due-process parameters, 

the validity of the probationer’s admission of the probation 

violation takes on constitutional and legal import.
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III

This brings us back to Maxwell’s “Motion to Withdraw Plea.”

As we explained above, the admission to a VOP was not a plea, so 

there was nothing to be withdrawn. An appeal of the revocation

and resulting sentence would have been pursuant to Florida Rule 

of Appellate Procedure 9.140(b)(1)(D) and (E) (relating to a postjudgment order “revoking or modifying probation” and to “an 

unlawful or illegal sentence”), not rule 9.140(b)(2)(A)(ii)c. 

(regarding “an involuntary plea, if preserved by a motion to 

withdraw plea”). The motion, then, did not postpone the deadline 

for taking an appeal under the subdivisions of (b)(1), and the thirty 

days for doing so consequently had run before Maxwell invoked 

this court’s jurisdiction here.

This basically ends the current appeal for Maxwell. It, 

however, may not end his access to relief. Despite its title (and the 

absence of a plea), the motion effectively lodged several collateral 

attacks related to Maxwell’s decision to admit to the charged VOP. 

His motion in essence purported to challenge the legal validity of 

the admission and the efficacy of counsel during the proceeding.

Because a VOP proceeding involves the question whether the 

defendant should be resentenced (as we already have discussed), 

Maxwell’s challenge necessarily was directed to the latest 

sentencing that resulted from his admission. That is, insofar as

Maxwell challenged the validity of his admission, he attacked the 

authority of the trial court to resentence him with an enhanced 

prison term. Central to that attack is Maxwell’s contention that

the VOP proceeding did not comport with due-process 

requirements. 

We do not comment here on the legal sufficiency of Maxwell’s 

claims or what might constitute a proper collateral attack on a 

resentencing that stems from a VOP proceeding.2 All we are saying 

2 It is conceivable that one or more of the claims could have 

been raised in a direct appeal of the revocation and further 

sentencing order—which he failed to perfect—and those would be 

procedurally barred from consideration in any collateral attack. 

See Fla. R. Crim. P. 3.850(c); Adams v. State, 380 So. 2d 423, 424 

(Fla. 1980) (noting that “asserted issues . . . could have been raised” 
11

here is that rule 3.850 may be read broadly enough to serve facially 

as the vehicle by which Maxwell could assert the collateral claims 

adumbrated in Maxwell’s motion. The rule authorizes a motion to 

vacate a sentence that has been illegally imposed, imposed without 

jurisdiction, or otherwise subject to collateral attack. Fla. R. Crim. 

P. 3.850(a)(1), (3), (6).3 As we have explained, the trial court’s 

authority to resentence Maxwell turned on the legal comportment

of the process surrounding Maxwell’s admission, a process that he 

purported to attack from several angles in his “post-resentencing”

motion.

With this stated, we must recognize the limit of our authority 

when reviewing a final order on appeal. As we suggested above, 

Maxwell’s motion did not comply with the requirements of rule 

3.850 and was not framed as a motion under that rule. We cannot 

recharacterize a motion filed in the trial court as something 

completely different and then review the court’s disposition of the 

motion as originally framed as if it were a disposition on a motion 

that was not actually before it. All we have now is an untimely 

appeal from an order revoking probation and imposing a prison 

sentence. There is but one disposition in this case.

DISMISSED.

WINOKUR and NORDBY, JJ., concur.

on direct appeal “and these matters thus will not support a 

collateral attack”); Sullivan v. State, 372 So. 2d 938, 939 (Fla. 

1979) (characterizing issues that “could have been raised in” a 

direct appeal cannot “support a collateral attack”); Spenkelink v. 

State, 350 So. 2d 85, 85 (Fla. 1977) (finding that a failure to raise 

an issue on direct appeal “waives the right to raise that claim” in 

a collateral proceeding); cf. Dougherty v. State, 149 So. 3d 672, 676 

(Fla. 2014) (holding that claim regarding competency was 

“procedurally barred because [the defendant] did not raise this 

issue on direct appeal”).

3 The rule also allows for a motion for relief if “the plea was 

involuntary.” Fla. R. Crim. P. 3.850(a)(5). As we already have 

explained, however, an admission to a VOP is not a plea, so this 

subdivision does not apply.
12

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Candice Kaye Brower, Regional Counsel, Melissa Joy Ford,

Assistant Regional Counsel, Tallahassee, for Appellant.

Ashley Moody, Attorney General, David Welch, Assistant Attorney 

General, Tallahassee, for Appellee.