DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRADLEY A. BEVANS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-3008
[February 26, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 50-2017-CF-
008596-AXXX-MB.
Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Georgina Jimenez-
Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
LEVINE, C.J.
Appellant appeals the order revoking his probation and sentencing him
to four years of imprisonment. Appellant claims that the trial court
considered improper factors during sentencing, revoked his probation for
grounds not proven, and imposed prosecution costs in excess of the
statutory amount. We find that the trial court properly considered that
appellant committed three new law violations soon after beginning
probation, remand for the trial court to correct a scrivener’s error in the
written order revoking probation, and reverse and remand the assessment
of prosecution costs. We affirm the other issues raised without further
comment.
On January 3, 2018, the trial court sentenced appellant to three years
of probation. An affidavit of violation of probation alleged that appellant
violated his probation by committing trespass after warning on January
10, 2018, trespass after warning on February 14, 2018, and disorderly
intoxication on February 18, 2018. An amended affidavit of violation of
probation added three additional violations for failure to pay supervisory
costs, court costs, and drug testing fees. Appellant was convicted of the
trespass and disorderly intoxication offenses after he pled guilty.
During the violation of probation hearing, the state proceeded only on
the three new law violations. The trial court orally found that appellant
violated probation based on the evidence presented. During the
sentencing hearing, the trial court stated, “I am considering the fact . . .
that [appellant was not] on probation seven days before [he] picked up a
new trespass” and that appellant “pled to a trespass, so I’m taking that
into account.” The trial court also commented on the short period of time
that had elapsed before appellant committed other offenses.
Appellant’s scoresheet reflected that appellant had two prior felony
convictions and ninety-five prior misdemeanors. Appellant faced a
minimum of 22.5 months in prison and a maximum of six years and six
months. The state recommended a sentence of five years. After noting the
minimum and maximum possible sentences, the trial court sentenced
appellant to four years of imprisonment. The trial court entered a written
order revoking probation for all counts alleged in the amended affidavit of
violation of probation, including the financial violations. The trial court
also imposed $200 in prosecution costs.
Appellant filed two motions to correct sentencing error under rule
3.800(b)(2), arguing the trial court erred in (1) assessing $200 for
prosecution costs rather than the $100 statutory amount, and (2) revoking
probation for three financial violations that were not proven at the violation
of probation hearing. The trial court did not rule on the motions within
sixty days, so they were deemed denied by operation of law. See Fla. R.
Crim. P. 3.800(b)(2)(B).
Appellant first claims that the trial court considered impermissible
factors in sentencing by considering the speed of his violations. “Florida
law gives a sentencing judge unlimited discretion to sentence a defendant
up to the maximum term set by the legislature for a particular crime.”
Alfonso-Roche v. State,
199 So. 3d 941, 946 (Fla. 4th DCA 2016) (Gross,
J., concurring). A sentence within the statutory limits is generally not
subject to appellate review. Taylor v. State,
253 So. 3d 631, 631 (Fla. 4th
DCA 2018). An exception to this rule exists when a sentencing court
considers constitutionally impermissible sentencing factors. Hillary v.
State,
232 So. 3d 3, 4 (Fla. 4th DCA 2017).
We find that the trial court properly exercised its discretion in
sentencing appellant to four years in prison. Appellant’s sentence was less
than the state’s recommended sentence of five years and less than the
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maximum sentence of six years and six months. Contrary to appellant’s
contention that it was error, the trial court properly considered that the
violations of probation occurred so quickly after the imposition of
probation, demonstrating appellant’s inability to abide by the law for even
a short period of time. During a probation violation hearing, “the trial
court may consider the new crimes a defendant committed because he
violated his probation by doing so.” Turner v. State,
261 So. 3d 729, 738
(Fla. 2d DCA 2018) (alteration, emphasis, and citation omitted). “When a
greater sentence is imposed upon the revocation of probation, it can be
based upon the defendant’s subsequent conduct demonstrating his lack
of amenability to reform.”
Id. (citation omitted). See also United States v.
Burkhalter,
588 F.2d 604, 606-07 (8th Cir. 1978) (finding no abuse of
discretion in revoking probation where defendant violated probation after
only three months and demonstrated an unwillingness to live within the
rules of his probation); State v. Moen,
896 N.W.2d 391 (Wis. Ct. App. 2017)
(finding that trial court properly considered the short amount of time
defendant was on probation before he violated his probation and the
number of violations committed).
Appellant next claims that the trial court erred in revoking his
probation for failure to pay court costs, supervision costs, and drug testing
fees. We agree that the written probation order does not conform to the
trial court’s oral pronouncement. During the violation of probation
hearing, the state proceeded only on the three new law violations. The
trial court orally found that appellant violated probation based on the
evidence presented, that being the new law violations. However, the
written probation revocation order found violations for all of the grounds
alleged in the amended violation of probation affidavit, which included
financial violations. We therefore remand for the trial court to correct the
scrivener’s error by striking that portion of the order finding violations for
the financial conditions. Coleman v. State,
276 So. 3d 812, 813 (Fla. 4th
DCA 2019).
Finally, appellant challenges the imposition of $200 in prosecution
costs. Imposing costs of prosecution involves a question of statutory
interpretation, which is reviewed de novo. D.A. v. State,
11 So. 3d 423,
423 (Fla. 4th DCA 2009). Section 938.27(8), Florida Statutes, provides:
Costs for the state attorney must be set in all cases at . . . no
less than $100 per case when a felony offense is charged,
including a proceeding in which the underlying offense is a
violation of probation or community control. The court may
set a higher amount upon a showing of sufficient proof of
higher costs incurred. . . .
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Because there was no “showing of sufficient proof of higher costs
incurred,” the trial court erred in imposing prosecution costs greater than
$100. Therefore, we reverse the prosecution costs and remand for the trial
court to impose the mandatory $100 fee, or to impose further costs if it
makes appropriate factual findings to support the imposition. Desrosiers
v. State,
286 So. 3d 297 (Fla. 4th DCA 2019); Simmons v. State,
24 So. 3d
636, 638 (Fla. 2d DCA 2009).
In sum, we affirm all issues, remand for correction of a scrivener’s error
in the written probation order, and reverse and remand the prosecution
costs.
Affirmed in part, reversed in part, and remanded with instructions.
MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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