JONATHAN D. BORRERO
v.
STATE OF FLORIDA
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When a trial court revokes probation for a violent felony offender of special concern, it must make explicit findings of dangerousness as required by section 948.06(8)(e)1., Florida Statutes, and failure to do so requires reversal and remand for resentencing.
[1] A trial court must make explicit findings of dangerousness as required by section 948.06(8)(e)1., Florida Statutes, when revoking probation for a violent felony offender…
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Join FLexlaw to unlock all legal intelligenceAppellant Borrero qualified as a violent felony offender of special concern and admitted to violations of probation. The trial court conducted a sente…
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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.
* * *
Not final until disposition of timely filed motion for rehearing.
2
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)
- Souza v. State, 229 So. 3d 387 (Fla. 4th DCA 2017)