JONATHAN D. BORRERO
v.
STATE OF FLORIDA
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Jonathan Borrero challenged the revocation of his probation and resulting sentence. The Fourth District Court of Appeal reversed and remanded because the trial court failed to make required findings of dangerousness for a violent felony offender of special concern, as mandated by Florida statute.
The trial court's failure to make required findings of dangerousness requires reversal and remand for a new sentencing hearing. Judicial findings of dangerousness for purposes of Fla. Stat. § 948.06(8)(e) do not violate Apprendi or Alleyne.
[1] A court's failure to make required findings of dangerousness before revoking probation for a violent felony offender of special concern necessitates a reversal and remand…
[2] Resentencing proceedings are de novo, allowing for the consideration of all legally permissible issues, including mitigation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The purpose of the hearing was to determine whether appellant posed a danger to the community, which would require the revocation of his probation. Despite the State's request, the court failed to make any findings of dangerousness, contrary to section 948.06(8)(e)1., Florida Statutes (2017).”
Establishes the central error: the trial court's failure to make required dangerousness findings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBorrero qualified as a violent felony offender of special concern under Fla. Stat. § 948.06(8)(c). After Borrero admitted to violations of probation, …
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PER CURIAM.
Appellant challenges the revocation of his probation and sentence imposed. He qualified as a violent felony offender of special concern pursuant to section 948.06(8)(c), Florida Statutes (2017). After appellant admitted the violations of probation of which he was charged, the court proceeded with a sentencing hearing. The purpose of the hearing was to determine whether appellant posed a danger to the community, which would require the revocation of his probation. Despite the State’s request, the court failed to make any findings of dangerousness, contrary to section 948.06(8)(e)1., Florida Statutes (2017). The State concedes, and we agree, that this failure requires a reversal and remand for a new sentencing hearing. Whittaker v. State, 223 So. 3d 270, 273-74 (Fla. 4th DCA 2017); Barber v. State, 207 So. 3d 379, 384-85 (Fla. 5th DCA 2016).
Because resentencing is a de novo proceeding, see State v. Collins, 985 So. 2d 985, 989 (Fla. 2008), we need not address the remaining issues raised, including the denial of the motion for reduction and mitigation of the sentence, and the motion to appoint conflict counsel, as appellant
made a claim of ineffective assistance of counsel. Appellant will be appointed counsel for the sentencing, and counsel may raise any issues that are legally permissible in resentencing, including issues of mitigation.
For purposes of resentencing, we do address and reject appellant’s contention that we should recede from Souza v. State, 229 So. 3d 387 (Fla. 4th DCA 2017), holding that a judicial finding of dangerousness for purposes of section 948.06(8)(e) does not violate Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). We explained our reasoning in Hollingsworth v. State, No. 4D18-3705 (Fla. 4th DCA April 1, 2020), which reasoning we adopt here.
Reversed and remanded for further proceedings.
WARNER, GERBER and FORST, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Alleyne v. United States, 570 U.S. 99 (U.S. 2013)
- Whittaker v. State, 223 So. 3d 270 (Fla. 4th DCA 2017)
- Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016)
- Souza v. State, 229 So. 3d 387 (Fla. 4th DCA 2017)