Francique v. State , 2015 Fla. App. LEXIS 11931 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed August 12, 2015
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-866
Lower Tribunal Nos. 02-8956 & 10-24093
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Revenel Francique,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge
Rodriguez-Chomat, Judge.
Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.
Before WELLS, ROTHENBERG, and LOGUE, JJ.
LOGUE, J.
The defendant, Revenel Francique, seeks review of the trial court’s
revocation of probation. The defendant pled guilty to armed robbery and was
ordered to serve a probation term of fifteen years commencing on April 13, 2011.
In July 2011, however, the defendant was again arrested for new offenses of grand
theft, armed robbery, and burglary with assault while armed, all of which involved
a singular victim. The defendant was alleged, by amended affidavit of probation
violation, to have 1) failed to pay the costs of supervision, as required by his
probation, and 2) to have committed the July 2011 offenses. The trial court found
him in violation of his probation and sentenced him to forty years in prison.
The trial court’s ruling on a revocation of probation is reviewed for abuse of
discretion. State v. Carter, 835 So. 2d 259, 262 (Fla. 2002); Harris v. State, 898 So.
2d 1126, 1127 (Fla. 3d DCA 2005). Although the trial court did not abuse its
discretion by revoking the defendant’s probation, we must nevertheless reverse, in
part, and remand.
First, the trial court issued an oral pronouncement of the probation
revocation, but did not issue a written probation order. The State properly and
commendably concedes that this Court should remand for the trial court to enter a
formal revocation order. See Thomas v. State, 159 So. 3d 937, 938 (Fla. 3d DCA
2015); Burt v. State, 931 So. 2d 1005, 1006 (Fla. 3d DCA 2006) (“[W]e reverse
the trial court to the extent that it must prepare a written order on the [community
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control] violations on remand.”); Mirto v. State, 24 So. 3d 803, 804-05 (Fla. 2d
DCA 2010) (affirming the defendant’s judgments and sentences, but “remand[ing]
for the circuit court to enter a formal order of revocation of community control”).
Second, based upon the trial court’s oral pronouncement, it is unclear
whether the probation revocation was based, at least in part, on the defendant’s
breach of his plea agreement by failing to attend his weekly meeting with Officer
Croye on the date of the robbery. The failure to meet with Officer Croye was not
charged in the probation revocation affidavit, and as such, could not constitute a
basis for probation revocation. See Thomas, 159 So. 3d at 937-38 (Fla. 3d DCA
2015); Johnson v. State, 899 So. 2d 436, 438 (Fla. 4th DCA 2005). The plea
agreement provided for prison time in the event it was breached and that prison
time may be considered by the trial court during sentencing. However, because of
its absence from the affidavit, the act of breaching the plea agreement for failure to
meet with Officer Croye could not itself serve as a violation of probation. We trust
that when the written order is entered on remand, the failure to meet with Officer
Croye will not be included as a basis for revocation of probation.
Although the trial court erred by not entering a written order, we
nevertheless conclude that the trial court properly found that the defendant
committed the offenses which properly form a basis for the revocation of
probation. There is substantial competent evidence supporting the court’s finding.
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Although the victim was unable to identify the defendant at the probation violation
hearing two years after the robbery, she had previously identified him out of a
photographic line-up and, while acknowledging that she could not presently
identify him because so much time had passed, she specified that she was certain
of his identity at the time she picked him out of the line-up. Additionally, Officer
Croye recognized the defendant from a surveillance video which captured him
entering and leaving the store in question at the time of the robbery. It was Officer
Croye’s recognition which led him to be included in the line-up.1 Lastly, the
vehicle described by the victim matched the vehicle used by the defendant to travel
to the police station when meeting with Officer Croye after the robbery, and before
the defendant knew he was a suspect.2
Given that there were substantial violations of probation, as properly found
by the trial court, we affirm the violation of probation. See Gray v. State, 40 Fla. L.
Weekly D1700 (Fla. 3d DCA July 22, 2015); Thomas, 159 So. 3d at 938; E.J. v.
State, 29 So. 3d 348, 351 (Fla. 3d DCA 2010); see also McDoughall v. State, 133
So. 3d 1097, 1100 (Fla. 4th DCA 2014) (“Despite the trial court’s errors, we affirm
the revocation of [defendant’s] probation. A trial court is authorized to revoke
probation based on a single violation of probation alone.”). Accordingly, we affirm
1 The officer had known the defendant for approximately twenty years and had
used him as an informant.
2 The officer had asked the defendant to come to the police station.
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the revocation of probation, reverse to the extent the violation of probation was
based upon the defendant’s failure to meet with Officer Croye, and remand for
entry of a written order of violation of probation consistent with this opinion and
resentencing.
Affirmed in part, reversed in part, and remanded with instructions.
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