Milanes v. State
| Citation | 296 So.3d 933 |
| Decision Date | 03 June 2020 |
| Docket Number | No. 4D19-2435,4D19-2435 |
| Parties | Rashad MILANES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
Rashad Milanes appeals the revocation of his probation and imposition of concurrent fifteen-year prison sentences. He contends that the court committed fundamental error by relying on impermissible considerations in finding that he willfully violated probation and imposing sentence, without providing him an opportunity to be heard. We agree and reverse.
Appellant Milanes was placed on probation for one count of sexual battery by a person in familial authority and one count for lewd and lascivious molestation of a victim over the age of twelve. He was sentenced to five years in prison followed by ten years of sexual offender probation.
Upon his release from prison in 2013, Milanes commenced his probationary period. More than a year later in 2014, a Violation of Probation was filed alleging that he possessed marijuana and failed to take an annual polygraph test. Milanes admitted the violations and entered into a plea wherein he served 270 days in the county jail and was reinstated on probation with modified terms. In March of 2015, a probation officer filed a Technical Violation Notification stating that Milanes failed to take a polygraph test within thirty days of his release from jail. However, neither a violation of probation affidavit nor an arrest warrant was issued.
An affidavit was filed in June 2015 alleging that Milanes violated his probation by having unapproved communications with a child under the age of eighteen. The trial court held a hearing, found him not guilty of the violation, and reinstated probation.
Three years later, in April 2018, his probation officer filed an affidavit accusing him of failure to register on the internet as a sexual offender and related charges. He admitted the violations and was reinstated on probation with a special condition that he serve 180 days in the county jail.
The current appeal arises out of an Affidavit of Violation of Probation filed in March 2019, alleging that he had failed to remain in his residence between 10:00 p.m. and 6:00 a.m., in other words, alleging that he missed his curfew. The affidavit described the violation:
Circumstances: On February 17, 2019, the offender during his curfew hours (10 pm until 12:10 am) wasn't at his approved residence located at the 2700 block of N. Federal Highway according to G.P.S tracking. The offender was at the Sawgrass Lanes (Bowling Alley) ... G.P.S. on call Probation Officer [ ] called the offender at approximately 10:05 pm and instructed him to immediately return to his approved residence. The offender failed to return back to his approved residence for two (2) hours until 12:10 am.
The accompanying report from the probation officer lists the prior incidents, and added that a technical violation notification was submitted by his probation officer in 2013 for the failure to abide by the mandatory curfew, but the court at the time declined to issue a warrant for the offender's arrest. There is no other reference in the record and attached progress docket to this technical violation notification.
Milanes denied that he committed a willful and substantial violation by missing his curfew. The trial court then conducted a final Violation of Probation hearing. The probation officer testified that he had instructed Milanes on his curfew and gave him a G.P.S. monitor. On the night in question, the monitor showed him at the Sawgrass Lane Bowling Alley at 10:00 p.m. Milanes did not return to his house until 12:10 a.m. The officer did not receive any voicemails or messages that evening from Milanes explaining why he missed curfew, noting that he could have left a message even though the probation office was closed. An on-call probation officer testified that she receives the alerts when a G.P.S. monitor alarm occurs outside of normal business hours. On the date in question, she received an alert at 10 p.m. that Milanes was at the Sawgrass bowling alley. She spoke with Milanes who told her he was waiting for an Uber driver to pick him up. His speech was slurred. The G.P.S. monitor showed he arrived at his home at 12:10 a.m.
Milanes testified that he had gone to the bowling alley with a friend around 7:00 p.m. to celebrate his new job, which he would start the next day. He had no money and did not have his phone with him. His friend bought him three beers and two rounds of pool. Before 9:30 p.m. he used his friend's phone and called, Jasmine, the mother of his son, for a ride home. She lived about five minutes from the bowling alley and would routinely provide a ride for him. However, Jasmine called back and told him she couldn't find her keys. He was not able to call his probation officer, because the officer's phone number was not in his G.P.S. device. He then asked his friend if she could drive him to his house, but she thought she was too intoxicated to drive. He didn't have money or a cell phone to call a taxi or Uber.
Milanes said he waited forty minutes to an hour for the friend to sober up, but he became concerned about getting in an accident, so he declined the ride and walked to Jasmine's house to help her look for her keys which they did not find. Then he tried calling family members to help. His mother, who lives in Georgia, finally called back a half an hour later and agreed to call him an Uber. He did not recall how long it took, but eventually the Uber arrived and took him home.
The next morning Milanes called his probation officer and told him why he missed his curfew. The officer explained to him that he would have to violate him because of the lengthy delay in getting home.
After the presentation of this evidence, both the State and the defense gave closing arguments to the court. The court immediately determined that Milanes had willfully and substantially violated his probation by the curfew violation. It explained that two factors influenced its decision. The first was Milanes's probation history. It pointed to a May 2013 curfew violation, which the court described as "a pass" because the judge had not violated him. The court then noted a second violation in May of 2015, which was "warning number two about curfew." The court pointed to a third curfew violation in June 2015. Based upon this history, the trial court found that Milanes was "resistant to supervision" and did not understand that curfew was a "hard line."
At this point, it should be noted that none of what the court treated as facts regarding Milanes's probation violation history is confirmed by any testimony or documents in our record. There is only the reference to a May 2013 curfew technical violation, but there is nothing in this record, other than the note in the 2019 report to confirm this, or in the progress docket which is also part of this record. Nothing in the record supports the other two curfew violations found by the trial court. Their dates match two 2015 affidavits of violation, but they had nothing to do with curfew violations. Thus, the court appears to be completely mistaken about the evidence, even if the court could have taken notice of it without allowing Milanes's counsel a chance to inspect or question it.
The court also found that Milanes should not have gone out drinking and put himself in a position over which he had no control. Believing that Milanes could have called his mother earlier to get an Uber ride home, the court found that it was his lack of action which caused his probation violation. The court concluded that considering Milanes's "prior history of not being able to conform to the conditions of probation .... he knowingly, willfully and substantially violated the terms and conditions of his probation." Without giving Milanes any opportunity to address the court on his sentence, the court immediately sentenced him to concurrent fifteen years terms in prison for each count of the original charges. Milanes appeals.
Milanes contends on appeal that the trial court violated his right to due process by considering his prior probation history in both the violation hearing and in imposing the sentence. The court ruled without affording Milanes the opportunity to respond and without providing him, as was his right, a hearing focused on the appropriate sentence. While no objection was lodged, because the court ruled before one could be made, we conclude that the court committed fundamental error.
The doctrine of fundamental error must be exercised cautiously and rarely. In Ray v. State , 403 So. 2d 956, 960 (Fla. 1981), the court set the criteria for permitting errors to be raised on appeal when they had not been properly preserved in the proceedings in the trial court:
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