Gray v. State , 2015 Fla. App. LEXIS 11038 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed July 22, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2457
Lower Tribunal Nos. 10-14896 & 10-3812
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Terence Keith Gray,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge
Rodriguez-Chomat, Judge.
Andrew Rier and Daniel Tibbitt, for appellant.
Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.
Before WELLS, LAGOA, and LOGUE, JJ.
LAGOA, J.
Terence Keith Gray (“Gray”) appeals from the revocation of his probation
and the thirteen-year sentence imposed upon revocation. We affirm the revocation
in part, reverse in part, vacate the sentence, and remand for resentencing.
Gray pled guilty to several charges in case number F10-3812 and case
number F10-14896, and the trial court sentenced him to six years of probation in
each case, to run concurrently. The State subsequently filed affidavits of violation
of probation in both cases; the final third amended affidavit in each case alleged
that Gray violated probation by committing the new offenses of aggravated battery
and possession of marijuana.1 After a hearing, the trial court found that Gray
willfully and substantially violated probation for committing the offense of
aggravated battery as alleged in the affidavits. The trial court also based the
revocation on a finding that Gray committed the offense of sexual battery upon a
child less than twelve years of age.2 The sentences imposed in case number F10-
3812 and case number F10-14896 totaled thirteen years in prison. Gray appealed.
As to the trial court’s finding that Gray willfully violated probation by
committing the new offense of aggravated battery, we find no abuse of discretion.
We, however, reverse the probation revocation to the extent that the trial court
found that Gray violated probation by also committing the sexual battery offense.
The final third amended affidavit filed by the State in each case did not allege that
Gray violated probation by committing the sexual battery offense. As the State
properly concedes, because the affidavits did not allege a violation of probation for
1The affidavits alleged that Gray violated probation condition 5—he failed to live
and remain at liberty without violating any law.
2 The aggravated battery charge stemmed from a jailhouse fight. The State
subsequently nolle prossed the aggravated battery and the sexual battery charges.
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that offense, the trial court erred in revoking Gray’s probation based on that
additional ground. See Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015)
(holding that it was error to revoke probation when the basis for the violation was
not alleged in the violation of probation affidavit); Osteen v. State, 147 So. 3d 678,
679 (Fla. 1st DCA 2014) (“It is well settled that the revocation of probation based
upon a violation not alleged in the charging document is a deprivation of the right
to due process of law.”).
Nonetheless, we affirm the revocation of probation based solely on the
aggravated battery, which is a substantial violation sufficient to support the
revocation. See Thomas, 159 So. 3d at 938 (affirming revocation on remaining
valid ground of committing new offense of aggravated battery); McDoughall v.
State, 133 So. 3d 1097, 1100 (Fla. 4th DCA 2014) (affirming revocation based on
single violation where it is clear that trial court would have revoked probation even
absent improper ground); see also E.J. v. State, 29 So. 3d 348, 351 (Fla. 3d DCA
2010). Here, the trial court’s finding that Gray violated his probation by
committing the aggravated battery offense was supported by competent, substantial
evidence.
We agree, however, with the State’s concession that the trial court must
resentence Gray as the record is not clear whether the trial court would have
imposed the same sentence based solely on the aggravated battery offense, the
remaining violation. See Matthews v. State, 897 So. 2d 523, 525 (Fla. 3d DCA
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2005) (holding that defendant must be resentenced because it was unclear whether
the trial court would have imposed the same sentence absent the most serious
charges for violation of probation); McDoughall, 133 So. 3d at 1100 (remanding to
resentence defendant because it was unclear whether trial court would have
imposed same sentence for single remaining new law violation); see also Mathis v.
State, 51 So. 3d 1250, 1252 (Fla. 2d DCA 2011). Accordingly, we vacate Gray’s
sentence and remand for resentencing. On remand, the trial court shall also enter a
written order revoking Gray’s probation solely for committing the aggravated
battery offense.
Affirmed in part, reversed in part, sentence vacated, and remanded for
resentencing.
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