Lee v. State
2011 Fla. App. LEXIS 13714
| Fla. Dist. Ct. App. | 2011Background
- Lee pleaded guilty to possession of cocaine, driving while license suspended or revoked, and fleeing to elude in two cases; trial court withheld adjudication and imposed concurrent youthful offender probation terms (24 months for possession and fleeing, 6 months for driving).
- DOC filed two probation-violation affidavits based on new offenses alleged by Lee; hearing held and probation violations found for trafficking, resisting an officer with violence, aggravated assault on a police officer, sale/delivery of cocaine, and possession of cocaine.
- Trial court revoked probation and sentenced Lee to consecutive five-year terms for possession and fleeing, with time served on driving, and declined to continue youthful offender status.
- State’s evidence for trafficking was hearsay only; resisting an officer with violence was not charged in the violation affidavit; both grounds challenged on appeal.
- Court affirms probation revocation but remands for a corrected revocation order deleting improperly established grounds.
- Sentence is reversed and remanded to resentence as a youthful offender; court must maintain youthful offender status on remand and may impose the same consecutive five-year terms if chosen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trafficking evidence sustains probation violation | Lee argues hearsay alone cannot support a violation. | State contends evidence supports the violation. | Probation revoked on proper grounds; however, trafficking finding must be deleted from corrected order. |
| Whether resisting an officer with violence was properly charged | Lee asserts this offense was not charged in the affidavit. | State relies on the hearing evidence. | Violation reversed for improper basis; corrected order must exclude this ground. |
| Whether youthful offender status must be maintained on revocation | Lee should retain youthful offender status upon revocation. | Discretion to modify status allowed depending on grounds. | Once sentenced as a youthful offender, status must be maintained on revocation; remand for youthful offender-respecting resentencing. |
Key Cases Cited
- Russell v. State, 982 So.2d 642 (Fla. 2008) (hearsay cannot be sole basis for probation violation)
- Casas v. State, 27 So.3d 203 (Fla. 2d DCA 2010) (hearsay admissible but not sole basis)
- Cherington v. State, 24 So.3d 658 (Fla. 2d DCA 2009) (cannot revoke for conduct not charged)
- Parminter v. State, 762 So.2d 966 (Fla. 2d DCA 2000) (basis for revocation must be charged)
- Simmons v. State, 913 So.2d 19 (Fla. 2d DCA 2005) (remand for corrected revocation order when proper grounds exist)
- Burse v. State, 724 So.2d 596 (Fla. 2d DCA 1998) (affirm revocation with corrected order on improper grounds)
- Olvey v. State, 707 So.2d 1189 (Fla. 2d DCA 1998) (review of grounds for revocation)
- Blacker v. State, 49 So.3d 785 (Fla. 4th DCA 2010) (youthful offender status remains after revocation if based on substantive violation)
- State v. Arnette, 604 So.2d 482 (Fla. 1992) (youthful offender status generally preserved on revocation)
- Gardner v. State, 656 So.2d 933 (Fla. 1st DCA 1995) (cannot reclassify after youthful offender sentence)