Kimmons v. State
| Decision Date | 03 April 2019 |
| Docket Number | No. 1D16-0204,1D16-0204 |
| Citation | 267 So.3d 1082 |
| Parties | Steven Earl KIMMONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
Ashley B. Moody, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
Bilbrey, J. Steven Earl Kimmons appeals the final judgment entered December 15, 2015, finding him in violation of probation, revoking his probation, and sentencing him to five years' imprisonment. He also appeals the separate order of revocation of probation, entered on the same date. We affirm the orders to the extent that they find Kimmons violated his probation, and we affirm the revocation of his probation. We remand for the trial court to strike its findings that Kimmons committed all the violations charged in the second amended affidavit of violation of probation and to resentence Kimmons based on only the violations properly found by the court.
While Kimmons was on probation for the offense of grand theft of an automobile he allegedly violated his probation. In paragraphs I. through V. of the second amended violation of probation affidavit, Kimmons was alleged to have failed to report to his probation officer, changed his residence without consent of his probation officer, failed to comply with instructions of his probation officer, failed to pay court costs, and used alcohol or illegal drugs. In paragraphs VI. through X. of the second amended violation of probation affidavit, Kimmons was alleged to have failed to live and remain at liberty without violating any law by committing sexual assault on a victim over twelve with special conditions1 and by committing four counts of sexual battery upon a mentally defective victim.2 See § 794.011(4) & (5), Fla. Stat. (2014).
Kimmons was ultimately tried by a jury on three counts of sexual battery. See § 794.011(5)(b), Fla. Stat. (2014). These three counts all concerned the same incidents alleged in the second amended violation of probation affidavit. Kimmons was convicted by the jury of one count. We affirmed his conviction and sentence on appeal. See Kimmons v. State , 2019 WL 994537 (Fla. 1st DCA Mar. 1, 2019). At the sentencing hearing for the new offense, the trial court considered the violation of probation allegations and found that Kimmons "did those things of which he was accused" and thus violated his probation.
The State never presented any evidence to support, and the trial court made no findings regarding, the allegations in paragraphs I. through V. referenced in the order of revocation of probation. Additionally, Kimmons never admitted to violating probation. Kimmons argues on appeal error in the revocation order finding ten violations as grounds for the revocation, when only paragraphs VI. through X. in the second amended affidavit of violation of probation concerned the new law violation. Kimmons also argues that paragraphs VI. through X. referred to in the separate order revoking probation were not the offenses upon which the State proceeded to trial in the new criminal prosecution.
The parties agree that the errors asserted here were unpreserved for appellate review. Accordingly, ordinary error is not enough, and reversal requires a showing of fundamental error. "[R]evoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error." Odom v. State , 15 So.3d 672, 678 (Fla. 1st DCA 2009). However, "[p]robation is properly revoked where a probationer is convicted of a necessarily lesser-included offense of the crime identified in the violation of probation affidavit." McCloud v. State , 249 So.3d 739, 741 (Fla. 1st DCA 2018).
In this case, violations VI. through X. as alleged in the second amended violation of probation affidavit stem from the new criminal charges. Prior to trial of the new charges, the State amended its Information to charge three counts of an offense which constitutes a necessary lesser-included offense of the original charges. See Fla. Std. Jury Instr. (Crim.) 11.3. Kimmons was convicted of one of these...
To continue reading
Request your trial
-
Kneer v. Lincare and Travelers Insurance
... ... Jordan , 417 So.2d 1159, 1160 (Fla. 1st DCA 1982) (noting that "[i]t has long been the law in this state that for post-traumatic neurosis to be compensable, it must be the direct and immediate result of the industrial injury"). These limitations reflect ... ...
-
Lovett v. State
...trial court would have imposed the same five-year prison sentence for violations of only conditions 5 and 27. See Kimmons v. State , 267 So. 3d 1082, 1084 (Fla. 1st DCA 2019) (remanding for resentencing where it was "not clear from the record" whether the court would have imposed the same s......
-
Smith v. State
...would have been revoked regardless of the monetary conditions and the same sentence would have been imposed. Cf. Kimmons v. State , 267 So. 3d 1082, 1084 (Fla. 1st DCA 2019) (holding that remand for resentencing was required where certain grounds for violation of probation were stricken on ......
-
Smith v. State
... ... primarily on his absconsion, which was his second time ... absconding from probation. The record further reflects that ... his probation would have been revoked regardless of the ... monetary conditions and the same sentence would have been ... imposed. Cf. Kimmons v. State, 267 So.3d 1082, 1084 ... (Fla. 1st DCA 2019) (holding that remand for resentencing was ... required where certain grounds for violation of probation ... were stricken on appeal and it was "not clear from the ... record whether the court would have imposed the same ... ...