Sampson v. State, 2D02-5657.

• Decision Date: 22 June 2005
• Docket Number: No. 2D02-5657.,2D02-5657.
• Citation: 903 So.2d 1055
• Parties: Larry SAMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

903 So.2d 1055

Larry SAMPSON, Appellant, v. STATE of Florida, Appellee.

No. 2D02-5657.

District Court of Appeal of Florida, Second District.

June 22, 2005.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

DANAHY, PAUL W., Senior Judge.

Larry Sampson appeals the order revoking his community control. He argues that reversal is required because the State's failure to file its affidavit¹ alleging the grounds for his violation constitutes fundamental error. Under the circumstances of this case, we disagree that fundamental error occurred and affirm.

Shortly after being placed on community control, the State alleged that Sampson violated the terms of his community control by committing new crimes and by being away from his residence without permission. The State introduced sufficient evidence at the revocation hearing to support the allegations and, based on that evidence, the trial court found that Sampson wilfully violated several of the conditions of his community control. The court revoked Sampson's community control and at the sentencing hearing two months later, sentenced him to a term of imprisonment. It is undisputed that an affidavit of violation alleging the specific conditions which Sampson violated was presented to the court at the revocation hearing. However, at some point thereafter, the affidavit was apparently misfiled or lost. The clerk of the circuit court has certified that no affidavit exists in the case file.

Sampson contends that the failure to file the formal charge of violation is fundamental error that may be raised for the first time on appeal, citing Carmichael v. State, 834 So.2d 421 (Fla. 2d DCA 2003), and Johnston v. State, 684 So.2d 262 (Fla. 4th DCA 1996), in support of his argument. Although we agree that the failure to file the affidavit was error, we disagree that the error was fundamental under the facts of this case. In Reed v. State, 837 So.2d 366 (Fla.2002), our supreme court discussed those situations when error rises to the level of fundamental error. Focusing on the requirement of prejudice to the defendant, the court stated: "[F]undamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental." Id. at 369. Under this definition of fundamental error, Sampson was required to show that he was prejudiced by the error before it would be considered to be fundamental. He has failed to do so.

The courts in Carmichael and Johnston reversed final orders of revocation because affidavits of violation had not been filed, finding that fundamental error had occurred. Neither opinion, however, reveals whether the affidavits were actually possessed by the parties or whether they were before the court at the evidentiary hearing, as it was in the present case. Nor do the opinions state whether the defendants were ever properly informed of the charges against them. In those cases, the defendants may well have actually been prejudiced by the failure to file the affidavits. The record in the case before us, however, shows that Sampson was not.

Unlike the defendants in Carmichael and Johnston, it is clear that Sampson received all the due process rights to which he was entitled, including notice of the alleged violations, an opportunity to be heard and to present evidence, and findings by the court stating the conditions violated. See Staley v. State, 851 So.2d 805 (Fla. 2d DCA 2003). Sampson does not argue that he failed to receive a copy of the affidavit before the hearing, nor does he argue that his community control was revoked based upon alleged violations that were not included in the affidavit. Compare DeJesus v. State, 848 So.2d 1276 (Fla. 2d DCA 2003) (holding that revocation of probation on grounds never alleged in writing violates due process and is fundamental error). Rather, he admitted to this court that the affidavit existed and that he was aware of its contents. Thus, we cannot agree with Sampson's argument that, based on Carmichael and Johnston, we must reverse merely because the affidavit of violation was not filed with the clerk of circuit court.

Here, the trial court conducted a lengthy revocation hearing and addressed each of Sampson's alleged violations of the conditions of his community control including new law violations. It is obvious from a reading of the hearing transcript that the court had the affidavit in its possession. The trial court read the allegations from the affidavit in open court and, based on the evidence presented, made findings as to each allegation:

So with respect to the allegations contained in the VOCC Affidavit, starting first on Page 1, the allegation that he committed an armed burglary, I'll make a finding that he's in violation to the extent that I'm satisfied by a preponderance of the evidence that he entered that vehicle with an attempt to commit an offense there and, specifically, stealing in some form or fashion.

Page 2 allegation, Condition Number 5, the allegation is grand theft. The evidence convinced this Court by a preponderance of the evidence that he certainly was in possession of a stolen vehicle, so I find him in violation of that condition.

The next Condition 5, is that he had no valid driver's license and I'll find him not to be in violation.

The next Condition 5, is that it alleges he committed the robbery of Horvath and DiPasquale, and, again, as I described my assessment of the evidence and its problems, I will find by a preponderance of the evidence, that I'm satisfied that he is in violation of that Condition 5.

The next Condition 5 is that it's alleged that he was a felon in possession of a firearm. The evidence demonstrated to me and satisfied me by a preponderance of the evidence, that obviously, by virtue of the certified copy, that he is a convicted felon, that he certainly was in the vehicle where the firearm was in, in an area where he knew or certainly should have been [sic], the firearm was

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