291 So.3d 591
Fla. Dist. Ct. App.2020Background
- On January 3, 2018 the trial court sentenced Bradley A. Bevans to three years of probation.
- An affidavit of violation of probation (VOP) alleged three new-law violations (trespass after warning on Jan. 10 and Feb. 14; disorderly intoxication on Feb. 18); an amended affidavit added failures to pay supervision costs, court costs, and drug-testing fees.
- Bevans pled guilty to the trespass and disorderly-intoxication offenses; at the VOP hearing the State proceeded only on the three new-law violations and the court orally found a violation based on that evidence.
- The court revoked probation and sentenced Bevans to four years’ imprisonment; the written revocation order, however, listed violations for the financial conditions as well, and imposed $200 in prosecution costs.
- Bevans filed rule 3.800(b)(2) motions challenging (1) consideration of the speed of violations at sentencing, (2) revocation based on unproven financial violations, and (3) imposition of $200 prosecution costs; those motions were deemed denied and appealed.
Issues
| Issue | Bevans' Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court impermissibly considered the short time between probation imposition and new offenses when sentencing | Court relied on the speed of violations as an improper sentencing factor | Court may consider defendant’s subsequent conduct and lack of amenability to reform when revoking probation | Affirmed — court permissibly considered rapid recidivism and sentenced within statutory range |
| Whether revocation may be based on failures to pay financial conditions that were not proven at the VOP hearing | Written revocation order improperly includes financial violations not proven at hearing | State proceeded only on new-law violations; written order may reflect broader allegations | Remanded to correct scrivener’s error: strike findings as to financial violations (oral finding was limited to new-law violations) |
| Whether $200 prosecution costs exceed the statutory minimum without adequate proof | $200 exceeds statutory $100 minimum and no factual findings justified higher amount | Court imposed $200 but made no sufficient factual finding to support an increased amount | Reversed and remanded: costs must be set at $100 absent a factual showing of higher costs |
Key Cases Cited
- Alfonso-Roche v. State, 199 So. 3d 941 (Fla. 4th DCA 2016) (sentencing judge has broad discretion within statutory limits)
- Hillary v. State, 232 So. 3d 3 (Fla. 4th DCA 2017) (exception where sentencing court considers constitutionally impermissible factors)
- Turner v. State, 261 So. 3d 729 (Fla. 2d DCA 2018) (trial court may consider new crimes committed when revoking probation)
- United States v. Burkhalter, 588 F.2d 604 (8th Cir. 1978) (no abuse in revoking probation after short interval showing unwillingness to comply)
- Coleman v. State, 276 So. 3d 812 (Fla. 4th DCA 2019) (remedy for scrivener’s error in revocation order)
- Desrosiers v. State, 286 So. 3d 297 (Fla. 4th DCA 2019) (court must make factual findings to impose prosecution costs above statutory minimum)
- Simmons v. State, 24 So. 3d 636 (Fla. 2d DCA 2009) (same)