Ruben McCloud v. State of Florida , 249 So. 3d 739 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4167
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RUBEN MCCLOUD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
June 8, 2018
ROWE, J.
Ruben McCloud appeals the trial court’s order revoking his
probation based on a new law violation, specifically McCloud’s
convictions for two counts of attempted manslaughter by act.
Because the trial court did not err in revoking probation, we affirm.
Background
On October 14, 2008, McCloud was charged in Leon County
with engaging in an organized scheme to defraud. He pleaded no
contest on January 15, 2009, and was sentenced to 210 days in jail
followed by 12 months of community control and 2 years of
probation.
On April 6, 2010, and while still on probation, McCloud was
arrested and charged in Duval County with two counts of
attempted murder, one count of shooting or throwing deadly
missiles into a dwelling or building, and one count of possession of
a firearm by a convicted felon. The Department of Corrections filed
a violation of probation affidavit in Leon County the next day,
alleging McCloud violated condition five of his probation by failing
to live and remain at liberty without violating any law and
condition ten by failing to make payments to the probation officer
as directed. The affidavit listed as new law violations the same
offenses that formed the basis of the Duval County charges.
McCloud went to trial on the Duval County charges. The jury
found him guilty of two counts of attempted second-degree murder
and one count of shooting or throwing deadly missiles. McCloud
appealed the judgment and sentence.
While his appeal was pending, the Leon County court held a
violation of probation hearing. The State presented a certified
copy of McCloud’s Duval County judgment and sentence, and the
court revoked McCloud’s probation. He was sentenced to 15 years’
imprisonment on the original charge of engaging in an organized
scheme to defraud.
On October 9, 2014, McCloud’s Duval County convictions were
reversed and the case was remanded for a new trial. McCloud v.
State, 150 So. 3d 822 (Fla. 1st DCA 2014). Because the Leon
County court revoked probation solely on grounds of the
overturned convictions, we granted McCloud a belated appeal and
reversed the revocation order. McCloud v. State, 213 So. 3d 971
(Fla. 1st DCA 2016). We remanded for the Leon County court to
hold a new violation of probation hearing.
Before the violation of probation hearing, McCloud was
retried in the Duval County case. The jury found him guilty of two
counts of “attempted manslaughter by act, a lesser[-]included
offense.” At the remanded violation hearing, the State proceeded
only on the claim that McCloud committed a new law violation and
presented a certified copy of McCloud’s Duval County judgment
and sentence for attempted manslaughter by act. The court
determined the certified conviction constituted evidence of a
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willful violation, revoked McCloud’s probation, and sentenced him
to 15 years’ imprisonment.
McCloud appeals the revocation order arguing that the trial
court erred by revoking probation on the basis of violations not
alleged in the probation affidavit. Citing our recent decision in
Bonner v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014), McCloud
argues that because the offense of attempted manslaughter by act
was not one of the new law violations listed in the violation of
probation affidavit, the trial court committed fundamental error
by revoking probation. We disagree.
A trial court fundamentally errs by revoking probation on
grounds not alleged in the violation of probation affidavit. Perkins
v. State, 842 So. 2d 275, 277 (Fla. 1st DCA 2003); Smith v. State,
738 So. 2d 433, 435 (Fla. 1st DCA 1999). As a matter of due
process, probationers are entitled to notice of which laws the
probationer is alleged to have violated and “an opportunity to
present a defense to them.” Hines v. State, 358 So. 2d 183, 185
(Fla. 1978); see also N.L. v. State, 825 So. 2d 509, 509-10 (Fla. 1st
DCA 2002). However, the violation of probation affidavit need only
“allege the basic facts concerning the alleged violation, such as its
nature, time, and place of occurrence.” Hines, 358 So. 2d at 185.
The violation of probation affidavit in this case provided
McCloud with notice that his probation was subject to permanent
revocation based on his Duval County charges for two counts of
attempted murder. Although he was ultimately convicted of two
counts of attempted manslaughter by act, attempted
manslaughter by act is a necessarily lesser-included offense of
attempted murder. State v. Montgomery, 39 So. 3d 252, 255-56
(Fla. 2010); Hill v. State, 124 So. 3d 296, 297 (Fla. 2d DCA 2013).
Probation is properly revoked where a probationer is convicted of
a necessarily lesser-included offense of the crime identified in the
violation of probation affidavit. See Ray v. State, 855 So. 2d 1260,
1261 (Fla. 4th DCA 2003) (reversing where revocation was based
on “a charge altogether different from that which the trial court
relied upon as a factual basis for the revocation” and noting that
“[t]his case is dissimilar from the situation where an affidavit
alleges a particular offense, but the probationer is actually
convicted of a lesser[-]included offense”); Thomas v. State, 634 So.
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2d 276, 277 (Fla 4th DCA 1994) (finding probationer had sufficient
notice of the nature of the charges where affidavit alleged new law
violation of resisting arrest with violence, but probationer was
actually convicted of resisting arrest without violence). A
revocation based on a necessarily lesser-included offense of the one
alleged in the violation of probation affidavit does not violate a
probationer’s due process rights because a necessarily lesser-
included offense is one “in which the statutory elements are always
subsumed within those of the charged offense.” See Sanders v.
State, 944 So. 2d 203, 206 (Fla. 2006). Because the State presented
evidence of McCloud’s convictions for a necessarily lesser-included
offense of the one alleged in the violation of probation affidavit, the
trial court did not err in revoking probation, and we affirm
McCloud’s judgment and sentence. ∗
We note, however, that the trial court’s revocation order does
not conform to the oral pronouncement because it also includes a
finding that McCloud violated condition ten (failure to make
payments). The State abandoned this allegation at the start of the
violation of probation hearing and the parties never addressed it.
Accordingly, we affirm the order revoking McCloud’s probation,
but remand for entry of a corrected order reflecting only a violation
of condition five (new law violations). See Lee v. State, 826 So. 2d
457 (Fla. 1st DCA 2002). McCloud need not be present.
AFFIRMED.
RAY and MAKAR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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∗
Our decision in Bonner does not compel a different result.
There, the crime alleged was nonexistent and by definition could
not have any lesser-included offense. 138 So. 3d at 1102.
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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.
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