TERENCE KEITH GRAY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gray appeals from revocation of his probation and a thirteen-year sentence imposed upon revocation. The court affirms revocation based on the aggravated battery violation alleged in the affidavits, but reverses the revocation based on sexual battery (which was not alleged in the violation affidavits), and remands for resentencing because it is unclear whether the trial court would have imposed the same sentence based solely on the aggravated battery offense.
The court affirms the probation revocation based on the aggravated battery offense, which is a substantial violation supported by competent evidence. The court reverses the revocation to the extent it was based on the sexual battery offense because that offense was not alleged in the violation affidavits, depriving Gray of due process. The sentence is vacated and the case is remanded for resentencing because it is unclear whether the trial court would have imposed the same sentence based solely on the aggravated battery violation.
[1] A trial court errs in revoking probation based on a violation not alleged in the affidavits of violation of probation.
[2] A finding of a single substantial violation of probation is sufficient to support revocation.
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Join FLexlaw to unlock all legal intelligence“It is well settled that the revocation of probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law.”
Establishes the fundamental principle that a probation violation must be alleged in the affidavit to satisfy due process requirements.
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Join FLexlaw to unlock all legal intelligenceGray pled guilty to charges in two cases and received six years of probation in each, running concurrently. The State filed amended affidavits allegin…
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Terence Keith Gray (“Gray”) appeals from the revocation of his probation and the thirteen-year sentence imposed upon revocation. We affirm the revocation in part, reverse in part, vacate the sentence, and remand for resentencing.
Gray pled guilty to several charges in case number F10-3812 and case number F10-14896, and the trial court sentenced him to six years of probation in each case, to run concurrently. The State subsequently filed affidavits of violation of probation in both cases; the final third amended affidavit in each case alleged that Gray violated probation by committing the new offenses of aggravated battery and possession of marijuana.1 After a hearing, the trial court found that Gray willfully and substantially violated probation for committing the offense of aggravated battery as alleged in the affidavits. The trial court also based the revocation on a finding that Gray committed the offense of sexual battery upon a child less than twelve years of age.2 The sentences imposed in case number F10-3812 and case number F10-14896 totaled thirteen years in prison. Gray appealed.
As to the trial court’s finding that Gray willfully violated probation by com*892mitting the new offense of aggravated battery, we find no abuse of discretion. We, however, reverse the probation revocation to the extent that the trial court found that Gray violated probation by also committing the sexual battery offense. The final third amended affidavit filed by the State in each case did not allege that Gray violated probation by committing the sexual battery offense. As the State properly concedes, because the affidavits did not allege a violation of probation for that offense, the trial court erred in revoking Gray’s probation based on that additional ground. See Thomas v. State, 159 So.3d 937 (Fla. 3d DCA 2015) (holding that it was error to revoke probation when the basis for the violation was not alleged in the violation of probation affidavit); Osteen v. State, 147 So.3d 678, 679 (Fla. 1st DCA 2014) (“It is well settled that the revocation of probation based upon a violation not alleged in the charging document is a deprivation of the right to due process of law.”).
Nonetheless, we affirm the revocation of probation based solely on the aggravated battery, which is a substantial violation sufficient to support the revocation. See Thomas, 159 So.3d at 938 (affirming revocation on remaining valid ground of committing new offense of aggravated battery); McDoughall v. State, 133 So.3d 1097, 1100 (Fla. 4th DCA 2014) (affirming revocation based on single violation where it is clear that trial court would have revoked probation even absent improper ground); see also E.J. v. State, 29 So.3d 348, 351 (Fla. 3d DCA 2010). Here, the trial court’s finding that Gray violated his probation by committing the aggravated battery offense was supported by competent, substantial evidence.
We agree, however, with the State’s concession that the trial court must resentence Gray as the record is not clear whether the trial court would have imposed the same sentence based solely on-the aggravated battery offense, the remaining violation. See Matthews v. State, 897 So.2d 523, 525 (Fla. 3d DCA 2005) (holding that defendant must be resen-tenced because it was unclear whether the trial court would have imposed the same sentence absent the most serious charges for violation of probation); McDoughall, 133 So.3d at 1100 (remanding to resen-tence defendant because it was unclear whether trial court would have imposed same sentence for single remaining new law violation); see also Mathis v. State, 51 So.3d 1250, 1252 (Fla. 2d DCA 2011). Accordingly, we vacate Gray’s sentence and remand for resentencing. On remand, the trial court shall also enter a written order revoking Gray’s probation solely for committing the aggravated battery offense.
Affirmed in part, reversed in part, sentence vacated, and remanded for resen-tencing.
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Thompson v. State, 208 So. 3d 1183 (Fla. 3d DCA 2017)…hose grounds, possession of the knife, was substantial, we vacate the sentence and remand for resentencing, as it is unclear from the record whether the trial court would have imposed the same sentence on the remaining violations. See Gray v. State, 170 So. 3d 890 (Fla. 3d DCA 2015); Secure v. State, 432 So. 2d 630 (Fla. 3d DCA 1983). Id. (emphasis added). A. August, 26, 2015, hearing — Thompson resentenced in absentia and without counsel prior to this Court’s mandate Prior to the issuance of this Court’s…
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Thompson v. State, 172 So. 3d 527 (Fla. 3d DCA 2015)…ose grounds, possession of the knife, was substantial, we vacate the sentence and remand for resentencing, as it is unclear from the record whether the trial. court would have imposed the same sentence on the remaining violations. See Gray v. State, 170 So. 3d 890 (Fla. 3d DCA 2015); Secure v. State, 432 So. 2d 630 (Fla. 3d DCA 1983). ■ Affirmed in part, reversed in part, and remanded.…
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Brown v. State, 260 So. 3d 1101 (Fla. 3d DCA 2018)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDOUGHALL v. State, 133 So. 3d 1097 (Fla. 4th DCA 2014)
- Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015)
- Mathis v. State, 51 So. 3d 1250 (Fla. 2d DCA 2011)
- Matthews v. State, 897 So. 2d 523 (Fla. 3d DCA 2005)
- Osteen v. State, 147 So. 3d 678 (Fla. 1st DCA 2014)
- E.J. v. State, 29 So. 3d 348 (Fla. 3d DCA 2010)