FELIX JONATHAN DEL CORRAL

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2023-2205 LT Case No. 2022-MM-020388-A _____________________________

FELIX JONATHAN DEL CORRAL,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the County Court for Duval County. Kristen Brooke Stephens Brady, Judge.

Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Ryan Roy, Assistant Attorney General, Tallahassee, for Appellee.

December 6, 2024

KILBANE, J.

Felix Jonathan Del Corral appeals an order of the trial court revoking his probation. On appeal, he argues that the trial court abused its discretion when it revoked probation for failing to report within 72 hours, failing to enroll and complete a batterer’s intervention program (“BIP”), failing to enroll and complete substance abuse treatment, and failing to pay fees because the

Facts

On February¹, 2023, Del Corral was placed on misdemeanor probation for battery as an act of domestic violence. At the plea hearing, the trial court placed Del Corral on misdemeanor probation for twelve (12) months and explained the special conditions of probation including the requirement to complete BIP, complete a substance abuse evaluation and any follow up treatment, have no contact with the victim, and pay court costs. The probation order reflected these additional probation requirements. The order of probation also contained “Initial reporting instructions for probationer.” It stated, “Report within 72 hours to Community Transition Center (451 N. Catherine Street).”

The State subsequently filed a memorandum alleging Del Corral violated his probation and requested a rule to show cause. The State alleged the following violations: • Failed to report to probation within 72 hours of court date and for scheduled appointment on 2-15-2023. • Has paid $0 in probation fees. As of 2-15-2023, is in arrears $60. • Failed to show proof of enrolling in and completing the Salvation Army Batterers Intervention Program. Defendant has attended 0 out of 24 classes. • Failed to show proof of enrolling in and completing a substance abuse evaluation with follow-up treatment. The trial court issued a rule to show cause for the alleged violations of probation.

5 The argument made on appeal that the State failed to prove a willful and substantial violation for the BIP and substance abuse treatment requirements was not made at the hearing, nor has Del Corral argued or demonstrated fundamental error. See Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (en banc). Accordingly, these claims of error are waived. See Keech v. Yousef, 815 So. 2d 718, 720 (Fla. 5th DCA 2002) (“The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.”). However, Del Corral did sufficiently argue fundamental error on the issue of fees as he discussed Del Valle v. State, 80 So. 3d 999 (Fla. 2011). In Del Valle, the Florida Supreme Court made clear what must be presented when failure to pay fees is alleged: [W]e conclude that, as held by this Court in Stephens [v. State, 630 So. 2d 1090 (Fla. 1994)] and the United States Supreme Court in Bearden [v. Georgia, 461 U.S. 660 (1983)], before a probationer can be imprisoned for failure to pay a monetary obligation such as restitution, the trial court must inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence. Further, in all probation revocation proceedings in which the violation alleged is a failure to pay a monetary obligation as a condition of the probation, we hold that the State must present sufficient evidence of the probationer’s willfulness, which includes evidence on ability to pay, to support the trial court’s finding of willfulness. Id. at 1015. “The failure to comport with these requirements constitutes fundamental error.” Id. at 1011. Here, the trial court orally stated Del Corral violated his probation for failing to pay fees without any evidence being presented on that issue. To the under the circumstances. Instead, Del Corral’s decision to stop attempting to report to probation would have been relevant to the alleged missed appointment on February 15, 2023. However, the State presented no evidence at the hearing that Del Corral had an appointment scheduled for February 15 or that he missed said appointment.

6 extent the oral pronouncement controls, see, e.g., Gonzalez v. State, 849 So. 2d 1112, 1113 (Fla. 5th DCA 2003) (explaining oral pronouncement of sentence controls); Laffitte v. State, 16 So. 3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.” (citing Salvatierra v. State, 691 So. 2d 32 (Fla. 3d DCA 1997))), the oral pronouncement constituted fundamental error because it was unsupported. Conclusion The State failed to establish violations for failing to report to probation within 72 hours and for failing to pay fees, and the trial court erred when it revoked Del Corral’s probation on those grounds. Accordingly, we reverse and remand for correction of the written order of revocation.² AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

MACIVER, J., concurs. LAMBERT, J., concurs with opinion.

7 _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

8

Case No. 5D2023-2205 LT Case No. 2022-MM-020388-A

LAMBERT, J., concurring with opinion.

I concur with the majority opinion but write briefly to provide two observations.

The trial court determined that Del Corral had willfully violated the conditions of probation that required him to enroll in and complete the Salvation Army Batterers Intervention Program and to undergo a substance abuse evaluation and complete followup treatment, if any. There was no factual dispute that Del Corral had failed to enroll in the Batterers Intervention Program or participate in a substance abuse evaluation. Del Corral’s argument to the trial court in response to the State’s assertion that these two violations were willful and material was that he had just been sanctioned days earlier by a trial judge in a separate case involving the same victim for not complying with these same conditions and that a further sanction here would violate the constitutional prohibition against double jeopardy. This is not the argument Del Corral makes on appeal for reversal, nor was the argument that he does make here raised below.

I also agree with the majority’s reversal of the trial court’s findings that Del Corral willfully failed to pay his “probation fees” and failed to timely report to probation, and that a remand is necessary for the entry of a corrected order of revocation of probation. Typically, when it is not clear from the record whether the trial court would have imposed the same sentence based on the remaining probation violations, we would also remand for resentencing. See Johnson v. State, 890 So. 2d 490, 493 (Fla. 5th DCA 2004). Here, though, the trial court revoked Del Corral’s probation, sentenced him to serve nine months in jail, with eightyseven days of jail credit awarded, with no probation to follow; and Del Corral was remanded to custody. Our record does not show that he sought post-trial release pending appeal. By the time Del Corral’s initial brief was filed in this appeal, he had fully served his sentence, making resentencing unnecessary, as correctly noted in the majority opinion.