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Steven Earl Kimmons v. State of Florida , 267 So. 3d 1082 ( 2019 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D16-0204
    _____________________________
    STEVEN EARL KIMMONS,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Santa Rosa County.
    John L. Miller, Judge.
    April 3, 2019
    BILBREY, J.
    Steven Earl Kimmons appeals the final judgment entered
    December 15, 2015, finding him in violation of probation, revoking
    his probation, and sentencing him to five years’ imprisonment. He
    also appeals the separate order of revocation of probation, entered
    on the same date. We affirm the orders to the extent that they find
    Kimmons violated his probation, and we affirm the revocation of
    his probation. We remand for the trial court to strike its findings
    that Kimmons committed all the violations charged in the second
    amended affidavit of violation of probation and to resentence
    Kimmons based on only the violations properly found by the court.
    While Kimmons was on probation for the offense of grand
    theft of an automobile he allegedly violated his probation. In
    paragraphs I. through V. of the second amended violation of
    probation affidavit, Kimmons was alleged to have failed to report
    to his probation officer, changed his residence without consent of
    his probation officer, failed to comply with instructions of his
    probation officer, failed to pay court costs, and used alcohol or
    illegal drugs. In paragraphs VI. through X. of the second amended
    violation of probation affidavit, Kimmons was alleged to have
    failed to live and remain at liberty without violating any law by
    committing sexual assault on a victim over twelve with special
    conditions 1 and by committing four counts of sexual battery upon
    a mentally defective victim. 2 See § 794.011(4) & (5), Fla. Stat.
    (2014).
    Kimmons was ultimately tried by a jury on three counts of
    sexual battery. See § 794.011(5)(b), Fla. Stat. (2014). These three
    counts all concerned the same incidents alleged in the second
    amended violation of probation affidavit. Kimmons was convicted
    by the jury of one count. We affirmed his conviction and sentence
    on appeal. See Kimmons v. State, 
    2019 WL 994537
     (Fla. 1st DCA
    Mar. 1, 2019). At the sentencing hearing for the new offense, the
    trial court considered the violation of probation allegations and
    found that Kimmons “did those things of which he was accused”
    and thus violated his probation.
    The State never presented any evidence to support, and the
    trial court made no findings regarding, the allegations in
    paragraphs I. through V. referenced in the order of revocation of
    probation. Additionally, Kimmons never admitted to violating
    probation. Kimmons argues on appeal error in the revocation
    1 This should have read sexual battery rather than sexual
    assault since there is no crime by that name under Florida law.
    But this misnomer is not argued here, and even if had been argued,
    would be immaterial in this case. See Smith v. State, 44 Fla. L.
    Weekly D559, 
    2019 WL 942980
     (Fla. 1st DCA Feb. 27, 2019).
    2  Condition 5 of the order of probation required Kimmons to
    “live without violating any law.” This Condition specified that “[a]
    conviction in a court of law is not necessary for such a violation of
    law to constitute a violation of your probation, community control,
    or any other form of court ordered supervision.”
    2
    order finding ten violations as grounds for the revocation, when
    only paragraphs VI. through X. in the second amended affidavit of
    violation of probation concerned the new law violation. Kimmons
    also argues that paragraphs VI. through X. referred to in the
    separate order revoking probation were not the offenses upon
    which the State proceeded to trial in the new criminal prosecution.
    The parties agree that the errors asserted here were
    unpreserved for appellate review. Accordingly, ordinary error is
    not enough, and reversal requires a showing of fundamental error.
    “[R]evoking probation based partly on a purported violation that
    was not proved or admitted constitutes fundamental error.” Odom
    v. State, 
    15 So. 3d 672
    , 678 (Fla. 1st DCA 2009). However,
    “[p]robation is properly revoked where a probationer is convicted
    of a necessarily lesser-included offense of the crime identified in
    the violation of probation affidavit.” McCloud v. State, 
    249 So. 3d 739
    , 741 (Fla. 1st DCA 2018).
    In this case, violations VI. through X. as alleged in the second
    amended violation of probation affidavit stem from the new
    criminal charges. Prior to trial of the new charges, the State
    amended its Information to charge three counts of an offense which
    constitutes a necessary lesser-included offense of the original
    charges. See Fla. Std. Jury Instr. (Crim.) 11.3. Kimmons was
    convicted of one of these necessary lesser-included counts.
    Accordingly, no fundamental error is demonstrated in the final
    judgment revoking Kimmons’ probation for committing a new law
    violation, and the judgment is affirmed to the extent that it
    revokes probation.
    However, we remand this case for correction of the separate
    order of revocation of probation which specified ten grounds upon
    which the revocation was based including five new law charges. 3
    3 Even though the jury returned a not guilty verdict on two of
    the offenses, the trial court may have intended to find Kimmons
    violated his probation by committing all three of the offenses tried
    by the jury. If this was the trial court’s intention, it would have
    been permissible since the burden of proof on a violation of
    probation is based on the greater weight of the evidence as opposed
    to proof beyond a reasonable doubt. See Stallworth v. State, 
    21 So. 3
    To the extent that order of revocation of probation lists grounds
    not proved by the State, the trial court is instructed to enter a
    corrected order striking the unproven violations and reflecting
    only the actual grounds it found proved by the State and upon
    which the revocation is based. Odom, 
    15 So. 3d at 678
    .
    The record is clear based on the court’s statement at the
    sentencing hearing that the trial court would have revoked Mr.
    Kimmons’ probation based solely on his conviction of the new
    offense. However, it is not clear from the record whether the court
    would have imposed the same five-year sentence based only upon
    the new law violation. See Williams v. State, 
    165 So. 3d 870
     (Fla.
    1st DCA 2015). Accordingly, upon remand, the trial court shall
    also determine whether it would have entered the same sentence
    upon the violations found by the court, and if not, conduct further
    proceedings accordingly.
    AFFIRMED in part, REVERSED in part, and REMANDED.
    ROWE and KELSEY, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant
    Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Anne C. Conley, Assistant
    Attorney General, Tallahassee, for Appellee.
    3d 84 (Fla. 1st DCA 2009); Morris v. State, 
    727 So. 2d 975
     (Fla. 5th
    DCA 1999).
    4
    

Document Info

Docket Number: 16-0204

Citation Numbers: 267 So. 3d 1082

Filed Date: 4/3/2019

Precedential Status: Precedential

Modified Date: 4/3/2019