KENNETH WHITTAKER v. STATE OF FLORIDA
223 So. 3d 270
| Fla. Dist. Ct. App. | 2017Background
- Kenneth Whittaker pleaded no contest to aggravated battery with a deadly weapon and was sentenced to five years probation.
- State alleged six probation violations, including resisting an officer (new law violation); a “danger” hearing was held where the probation officer testified uncertainly about dangerousness.
- The trial court orally and in the disposition order found Whittaker "not a danger," revoked probation, and imposed a guidelines prison sentence of 49.05 months (bottom of guidelines) with credit for time served.
- The court added 12 scoresheet points treating Whittaker as a "violent felony offender of special concern" (VFOSC); Whittaker objected and argued he should have 6 points instead.
- The disposition order did not specify which statutory factors under section 948.06(8)(e) the court relied on in making its danger finding, and the court imposed a $400 public defender fee without notice/hearing or factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court complied with §948.06(8)(e) in making written findings on dangerousness before sentencing a VFOSC | Whittaker: court failed to base "not a danger" finding on one or more enumerated statutory factors; written findings are mandatory | State: new sentencing hearing required but VFOSC designation need not be stricken; court should make required written findings on remand | Reversed and remanded for new sentencing hearing; court must make written findings under §948.06(8)(e) when imposing sentence |
| Whether VFOSC designation must be stricken for failure to make §948.06(8)(e) findings | Whittaker: designation should be stricken because findings were deficient | State: designation stands; designation under §§948.06(8)(b)-(d) does not depend on §948.06(8)(e) findings | VFOSC designation not stricken; Whittaker qualifies under §§948.06(8)(b)-(c) |
| Whether scoresheet points were incorrect because of VFOSC findings omission | Whittaker: should receive 6 points (non-VFOSC) rather than 12 | State: 12 points proper because VFOSC designation is independent of §948.06(8)(e) findings | No scoresheet error; 12 points were properly applied |
| Whether imposition of $400 public defender fee was proper without notice/hearing/finding | Whittaker: fee unconstitutional/procedurally improper | State: conceded new hearing/remand appropriate | Reversed as to fee; remand to reduce to $100 or hold hearing with notice and factual support |
| Whether written order of revocation must specify violated conditions | Whittaker: order lacked required specificity | State: conceded remedial relief | Remand for entry of written order of revocation specifying conditions violated |
Key Cases Cited
- Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016) (written findings under §948.06(8)(e) are mandatory; remedy is remand for proper findings)
- Bailey v. State, 136 So. 3d 617 (Fla. 2d DCA 2013) (insufficient written findings under §948.06(8)(e) require reversal of those findings)
- Bryant v. State, 148 So. 3d 1251 (Fla. 2014) (written findings required to support upward departure; distinguishes VFOSC context)
- Cherilus v. State, 199 So. 3d 392 (Fla. 4th DCA 2016) (standard of review for legality of sentencing is de novo)
- Alexis v. State, 211 So. 3d 81 (Fla. 4th DCA 2017) (public defender fee above statutory minimum requires notice/hearing and factual findings)
- Clark v. State, 201 So. 3d 799 (Fla. 4th DCA 2016) (trial court must enter written revocation order specifying violated conditions)