170 So. 3d 890
Fla. Dist. Ct. App.2015Background
- Gray pled guilty in two cases and received six years of probation to run concurrently.
- State filed affidavits alleging probation violations for aggravated battery and, in each case, sexual battery.
- Trial court found willful and substantial probation violation based on aggravated battery and also relied on sexual battery.
- Affidavits did not allege a probation violation for sexual battery; the sexual battery ground was not properly charged.
- Court vacated the sexual-battery ground, but affirmed the probation revocation based on aggravated battery and remanded for resentencing.
- On remand, court must enter a written order revoking probation solely for aggravated battery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation based on aggravated battery is supported | Gray committed aggravated battery. | State contends aggravating battery justifies revocation. | Affirmed on aggravated battery ground. |
| Whether probation revocation based on sexual battery was proper | But the affidavit did allege it; ground supported. | Sexual battery ground not alleged in affidavits; improper. | Reversed as to sexual battery ground; not a valid basis. |
| Whether resentencing is required due to potential different sentence absent other grounds | Same sentence would have been imposed with aggravated battery only. | Record unclear on whether same sentence would occur absent other grounds. | Remanded for resentencing; sentence vacated. |
Key Cases Cited
- Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015) (revocation invalid when ground not alleged in affidavit)
- Osteen v. State, 147 So. 3d 678 (Fla. 1st DCA 2014) (due process if ground not charged in violation affidavit)
- Matthews v. State, 897 So. 2d 523 (Fla. 3d DCA 2005) (remand when unclear if same sentence would be imposed)
- McDoughall v. State, 133 So. 3d 1097 (Fla. 4th DCA 2014) (affirming on single valid ground when it would have revoked anyway)
- Mathis v. State, 51 So. 3d 1250 (Fla. 2d DCA 2011) (remand for resentencing when ambiguous sentencing basis)
- E.J. v. State, 29 So. 3d 348 (Fla. 3d DCA 2010) (supports revocation based on valid ground staying substantial)