261 So. 3d 729
Fla. Dist. Ct. App.2018Background
- Timothy Turner had a second-degree murder conviction vacated, accepted an 18-year sentence with two years of community control, and was released on community control.
- The State filed an amended community-control violation affidavit alleging failures to submit to urinalysis, improper residence changes, failure to remain confined, and several new-law offenses discovered during an arrest attempt.
- Turner admitted the alleged violations but did not admit guilt to the pending new criminal charges; those charges were unresolved at sentencing.
- At a second hearing, law enforcement testified about Turner's flight, forced entry into a neighbor's home, assault on the neighbor, and discovery of drugs on his person; Turner presented mitigating psychiatric and drug-use evidence.
- The trial court revoked community control and imposed life imprisonment, finding Turner dangerous and citing his violent history and the new conduct; the written revocation order contained a scrivener's error about which allegations were violated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may consider facts underlying new arrests (not yet resulting in convictions) when deciding to revoke community control and impose sentence after revocation | Turner: Norvil prohibits consideration of subsequent arrests without convictions at sentencing; the court improperly considered pending new-law arrests | State: Revocation proceedings differ from sentencing after conviction; conduct underlying arrests while on community control is relevant to revocation and sentencing upon revocation | Court: Norvil inapplicable here; trial court properly considered conduct underlying new arrests in revocation and resentencing context |
| Whether Turner’s admission to violations precluded the court from receiving evidence about the facts underlying those violations | Turner: Admission limited to admitting violation only; no evidentiary hearing as to new-law facts | State: Full hearing and evidence are appropriate to inform revocation and sentencing discretion | Court: Admission was competent evidence of a violation, but due process required a hearing; it was proper and necessary for the court to receive evidence about underlying conduct |
| Whether the revocation decision was supported and constitutional (due process) | Turner: Court may have relied on improper factors and pending charges | State: Court afforded hearing, heard mitigation, and exercised broad discretion to revoke for public safety | Court: Revocation was proper; due process safeguards satisfied by hearing and opportunity to be heard |
| Whether the written revocation order matched the trial court’s oral findings | Turner: Written order incorrectly states violations | State: N/A | Court: Affirmed revocation and sentence but remanded to correct scrivener's error in the revocation order |
Key Cases Cited
- Norvil v. State, 191 So. 3d 406 (Fla. 2016) (adopted a bright-line rule disallowing consideration of subsequent arrests without convictions in sentencing for the primary offense)
- Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013) (State must prove violation by greater weight of evidence at revocation hearing)
- Mosely v. State, 198 So. 3d 58 (Fla. 2d DCA 2015) (trial court may not consider post-offense misconduct details in sentencing for the primary offense)
- Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007) (reversed sentence where trial court considered details of pending charges)
- Brown v. State, 225 So. 3d 947 (Fla. 5th DCA 2017) (reversal warranted when court emphasized charged conduct post-offense and appeared to rely on it)
- Peters v. State, 984 So. 2d 1227 (Fla. 2008) (revocation hearing must assure violations are based on verified facts and informed discretion)
- Black v. Romano, 471 U.S. 606 (U.S. 1985) (due process requires opportunity to present mitigating evidence and be heard before final revocation)
- Williams v. Wainwright, 650 F.2d 58 (5th Cir. 1981) (greater sentence on revocation may be based on subsequent conduct showing lack of amenability to reform)