REKEISHA T. SAMUELS

v.

STATE OF FLORIDA

SHAW, J.

The defendant appeals the circuit court's order revoking her probation and imposing a sentence. For the reasons discussed more fully below, we affirm in part, reverse in part, and remand to the circuit court with instructions.

I. BACKGROUND

On August 15, 2019, the circuit court adjudicated the defendant guilty of grand theft of a vehicle in one case and burglary of a dwelling and petit theft in another case. The defendant was sentenced to a term of imprisonment, to be followed by four years' probation in each case. The circuit court ordered these sentences to run concurrently with each other. Four years later, on August 4, 2023, the defendant's probation officer filed an amended affidavit of violation of probation (the “Affidavit") alleging that the defendant had committed the following four violations of the conditions of her probation: (1) Allegation¹: The defendant violated Condition 2 of her probation by failing to pay the State of Florida approximately $850.00 toward the cost of supervision, as of May 23, 2023.

(2) Allegation 2: The defendant violated Condition 3 of her probation by changing her residence without first procuring the consent of her probation officer, which the officer discovered on May 23, 2023.

(3) Allegation 3: The defendant violated Condition 9 of her probation by failing to comply with her probation officer's May 16, 2023 instructions to remain in her residence on May 21, 2023 until the probation officer made contact with her. (4) Allegation 4: The defendant violated Condition 3 of her probation by changing her residence without first procuring the consent of her probation officer, which the officer discovered on July 28, 2023. It was further alleged that the defendant made herself unavailable for supervision and that her whereabouts were unknown.

At the subsequent violation of probation hearing, the State announced it was not proceeding on Allegation¹ or 2 and would proceed only on Allegations 3 and 4. After hearing the testimony of two probation officers and argument from the parties, the circuit court orally found:

As to Allegation 1, that [the defendant] failed to pay the State of Florida $25 towards the cost of supervision, the Court would find there's no evidence to support that allegation. The Court would dismiss the first allegation of the warrant.

As to Allegations 2, 3 and 4 of the warrant, the Court would find the State has presented competent, substantial evidence that [the defendant] changed her residence without permission, without procuring the consent of the probation officer, and as such, there's sufficient evidence to find her in violation on Counts II, III, and IV, and the Court will do so. The Court is going to decline to have a danger hearing, because the Court's actions will not be dependent upon a finding of dangerousness. In each case, the Court is going to revoke probation, maintain adjudication, sentence [the defendant] to 40.05 months, Florida State Prison.

And just to be clear, the Court has declined to hold a danger hearing because had I found her a danger, I still would've been obliged to revoke her, but she would've received the same sentence as if I found her not to be a danger. The Court would not have reinstated and the Court would've revoked anyway, SO the danger hearing is not necessary under the circumstances as the Court finds it.

The defendant subsequently filed a notice of appeal challenging the circuit court's order revoking her probation and imposing a sentence. The defendant also filed a motion to correct sentence requesting entry of a written order specifying the conditions violated, supporting evidence, and reasons for revoking probation, as well as a hearing and a written order determining whether the defendant posed a danger to the community, as required under section 948.06(8)(e), Florida Statutes (2024). The record on appeal does not contain an order on the motion to correct sentence, which has been pending since March 17, 2025.

II. STANDARDS OF REVIEW

Different standards govern our review in this appeal. Whether the circuit court acted without jurisdiction presents a pure question of law, which we review de novo. See Cromartie v. State, 70 So. 3d 559, 563 (Fla. 2011) (citing D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)). We also review de novo the circuit court's order on a motion to correct a sentencing error. See Pitts v. State, 202 So. 3d 882, 884 (Fla. 4th DCA 2016) (citing Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009)).

We review “the [circuit] court's revocation of probation under an abuse of discretion standard.” Bryant v. State, 389 So. 3d 740, 742 (Fla. 3d DCA 2024) (citing Russell v. State, 982 So. 2d 642, 646 (Fla. 2008)).

III. DISCUSSION

On appeal, the defendant contends that the circuit court erred in four ways by: (1) considering Allegation 2 when the State had withdrawn that allegation; (2) finding the evidence was sufficient to establish Allegation 4; (3) revoking the defendant's probation without entering a written order; and (4) revoking the defendant's probation without first making written findings regarding whether she posed a danger to the community. We address each issue in turn below.

A. The Circuit Court Fundamentally Erred in Considering a Violation of Allegation 2 in Revoking the Defendant's Probation.

The State withdrew Allegation 2 during the violation of probation hearing, as it was allowed to do. See Randolph v. State, 355 So. 3d 442, 448-49 (Fla. 4th DCA 2023) (noting that where an affidavit of violation of probation alleges multiple violations, the State is not required to proceed on every allegation in the affidavit). Thus, the circuit court fundamentally erred by orally finding that the defendant violated probation based on Allegation 2. See Davis v. State, 210 So. 3d 101, 103–04 (Fla. 2d DCA 2016) (holding that the trial court fundamentally erred by considering a probation violation allegation that was withdrawn by the State). On remand, the circuit court's written order should reflect only violations based on Allegations 3 and 4.

B. The Circuit Court Did Not Fundamentally Err in Finding the Evidence was Sufficient to Establish a Violation of Condition 3 of the Defendant's Probation as Alleged in Allegation 4.

The defendant argues that the sole basis for Allegation 4 was hearsay from the defendant's mother to the probation officer-specifically, the mother's statement that her daughter did not live at the listed location. However, this is incorrect. The circuit court heard testimony from the probation officer that he had personally made multiple, unsuccessful attempts to contact the defendant at her listed residence and that the defendant had made several relevant admissions to him. On May 21, 2023, the defendant admitted that she was not at home when the probation officer instructed her to wait for him there, and on April 24, 2023, the defendant admitted that she was living with a boyfriend at a different address. Accordingly, competent, substantial evidence established Allegation 4. See Mosley v. State, 735 So. 2d 547, 547–48 (Fla. 4th DCA 1999) (finding that the probation officer's testimony was sufficient for the trial court to conclude that appellant had changed his residence without his probation officer's permission where the evidence established that the officer could not make contact with the probationer after visiting the residence numerous times and leaving several messages which were never answered). C. The Circuit Court Erred by Revoking the Defendant's Probation without Entering a Written Order. Florida law is clear that if a circuit court revokes a defendant's probation, that court is “required to render a written order noting the specific conditions of probation that were violated.” King v. State, 46 So. 3d 1171, 1172 (Fla. 4th DCA 2010). That did not occur here. Accordingly, we remand for the circuit court to render a written order reflecting violations of Conditions 9 and 3 of the defendant's probation, as set forth in Allegations 3 and 4. See Whittaker v. State, 223 So. 3d 270, 276 (Fla. 4th DCA 2017) (remanding for entry of a written order of revocation of probation specifying the conditions appellant was found to have violated) (citing Clark v. State, 201 So. 3d 799, 799 (Fla. 4th DCA 2016)).

D. The Circuit Court Erred by Revoking the Defendant's Probation without First Making Written Findings Regarding Whether She Posed a Danger to the Community.

When a violent felony offender of special concern (“VFOSC”) is found to have violated a condition of their probation, section 948.06(8)(e), Florida Statutes (2024), requires the circuit court to “make written findings" regarding whether that individual poses a danger to the community. This requirement is mandatory, not discretionary. See Lillard v. State, 382 So. 3d 732, 733 (Fla. 4th DCA 2024). Here, the defendant does not dispute that she qualifies as a violent felony offender of special concern pursuant to section 948.06(8)(e), Florida Statutes (2024). However, the circuit court did not make the required written findings, nor did it make any oral findings on dangerousness. Indeed, the circuit court explicitly stated twice that it was going to decline to hold a danger hearing, because it would have given the defendant the same sentence regardless of a finding of dangerousness. This was error. However, the parties differ on the remedy upon remand. The defendant cites Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016), arguing that in this situation, “the proper remedy is to reverse the sentencing order and remand for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e) when imposing its sentence.” The State, on the other hand, argues that the appropriate disposition is for the circuit court to conduct the requisite VFOSC hearing and enter written findings, with the understanding that the revocation judgment stands, and the existing lawful guideline sentence should be reimposed. We are persuaded that Barber provides the correct approach. See Barber, 207 So. 3d at 384–85; see also Thompson v. State, 265 So. 3d 700, 703 (Fla. 4th DCA 2019) (reversing and remanding for a new sentencing hearing where the circuit court failed to consider the factors under section 948.06(e) and make written findings as to whether the defendant was a danger to the community); Whittaker, 223 So. 3d at 273–76 (same). Accordingly, we reverse and remand for another sentencing hearing with directions that the circuit court make the necessary written findings under section 948.06(8)(e) when imposing its sentence.¹

CIKLIN and LEVINE, JJ., concur. * * *