Smith v. State
| Decision Date | 27 February 2019 |
| Docket Number | No. 1D17-2771,1D17-2771 |
| Citation | 268 So.3d 831 |
| Parties | Christopher Ray SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andy Thomas, Public Defender, Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley B. Moody, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges his probation revocation, arguing that the violation affidavit was insufficient, and that he was denied an opportunity to be heard before his sentence was imposed. We affirm the trial court's decision to revoke Appellant's probation, but we vacate the sentence imposed at the violation of probation hearing and remand for resentencing by a new judge.
In 2013, Appellant was charged by information with aggravated child abuse. Pursuant to a plea agreement, Appellant was sentenced to 36 months of probation. In 2016, the State alleged that Appellant had violated Condition Five of his probation by committing two counts of "Sexual Assault." The accompanying violation report listed the underlying offenses as "Eighteen (18) YOA or Older Sexual Battery on a Victim Under Twelve (12) YOA." The violation report alleged that Appellant placed his fingers inside of the child victim, who was five to six years old at the time of the alleged incidents. The violation report alleged that the victim was hurt and yelled for Appellant to stop.
At the jury trial for Appellant's sexual battery offenses, the victim's mother and grandmother testified that Appellant, who was married to but separated from the child's mother, had raised the child victim since her birth. They testified that one night, the victim told them that her "daddy" had been touching her when she would go stay with him. The victim's grandmother testified that the victim told her that the touching hurt, and that she would yell for it to stop. The child's mother admitted that the doctors found no evidence of physical injury when they immediately took her for a medical examination. The State played a recording of the victim being interviewed by a case coordinator from the Department of Health. On the tape, the child victim described Appellant pulling down her underwear at night and putting his hands on the outside and inside of her skin. The child victim took the stand and testified that Appellant had repeatedly touched her private parts with his tongue and his finger; she testified that his finger went "almost inside."
After the close of the evidence at trial, while the jury was deliberating, the trial court conducted an evidentiary hearing on the charged probation violation. After closing argument and jury instructions, the trial court asked the State if any other evidence would be presented on the probation violation, and the State replied, "Nothing extra, Judge." The trial court then revoked Appellant's probation and sentenced him to five years in prison. The trial court told Appellant: Defense counsel raised no contemporaneous objections at the probation-violation hearing.
After an initial deadlock, the jury found Appellant not guilty of the charged sexual batteries. The jury attached a note stating that it was the consensus of the jury that Appellant had done some illegal act, but that the evidence did not prove the specific act.
After the jury trial, the trial court entered a second amended order of revocation of probation, stating that it found Appellant guilty of violating Condition Five of his probation, based on the charges alleged in the amended affidavit.1
"A trial court fundamentally errs by revoking probation on grounds not alleged in the violation of probation affidavit." McCloud v. State , 249 So.3d 739, 741 (Fla. 1st DCA 2018). However, a revocation of probation hearing State ex rel. Roberts v. Cochran , 140 So.2d 597, 599 (Fla. 1962). Likewise, "formal conviction of a crime is not essential to enable the judge to revoke the order of probation." Id. ().
In Hines v. State , 358 So.2d 183, 184 (Fla. 1978), a probation-violation affidavit alleged that the probationer violated the conditions of his probation when he was "arrested by Sarasota Deputy B. Blosser for burglary[.]" The affidavit provided no further details of the offense. Id. The supreme court held that "an affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence." Id. at 185. However, although "the written factual allegations in the affidavit for violation of probation were insufficient to provide notice to the probationer with what criminal act he was charged[,]" the supreme court held that this error was harmless, for the record showed that the probationer clearly had notice of the charges against him. Id.
Here, the amended affidavit, which the trial court relied upon as the basis for revoking Appellant's probation, stated that Appellant twice violated Condition Five of his probation "by being arrested for ... Sexual Assault ...." Appellant argues that because there is no such crime of "sexual assault" defined in the Florida Statutes, the trial court fundamentally erred by revoking probation based on non-existent crimes.
Appellant is correct that there is no crime of sexual assault defined in the Florida Statutes. Although the amended affidavit stated the basic nature of the offenses (sexual assaults), the time ("between the dates of April 20, 2015 and April 24, 2016"), and the place ("Escambia County, Florida"), the affidavit itself did not allege any details of the sexual batteries, nor did it state which statutory provisions were allegedly violated.
However, despite any purported deficiencies of the amended affidavit, Appellant, like the probationer in Hines , was clearly on notice of the crimes for which he was arrested and charged. The violation report that accompanied the amended affidavit referred to the underlying offenses as "Two (2) counts of Sexual Assault by an Eighteen (18) YOA or Older Sexual Battery on a Victim Under Twelve (12) YOA." ’ The report...
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York v. State
...to hear evidence and argument regarding a sentence constitutes a denial of due process and is fundamental error." Smith v. State, 268 So. 3d 831, 834 (Fla. 1st DCA 2019) (citing Davenport, 787 So. 2d at 32 ). Here, the trial court sentenced Ms. York immediately after the jury left the court......
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