KEENEY DIAZ v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed June 7, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1095
Lower Tribunal Nos. 14-184-A-K, 15-339-A-K, 16-495-A-K
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Keeney Diaz,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Monroe County, Mark H. Jones,
Judge.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez,
Assistant Attorney General, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
GORDO, J.
Keeney Diaz appeals the revocation of his community control arguing
the trial court failed to explicitly find he willfully and substantially violated his
community control. We have jurisdiction. Fla. R. App. P. 9.140(b)(1)(D).
Because Diaz admitted to violating his community control, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Diaz was charged with and pled guilty to: (1) aggravated
battery with a deadly weapon and/or causing great bodily harm; and (2)
resisting an officer with violence. Diaz was deemed a violent felony offender
of special concern and was sentenced to prison time followed by two years’
probation. While on probation, Diaz was arrested and charged with two new
law violations. Diaz entered a plea of admission to both and received a new
sentence of twenty-four months of community control with a requirement that
he complete a rehabilitation program.
In March 2019, an affidavit of violation was filed alleging Diaz had
violated his community control by: (1) changing his residence without his
probation officer’s consent; (2) failing to successfully complete or remain in
drug/alcohol residential treatment; (3) making himself unavailable for
supervision; (4) failing to pay the State per month toward cost of supervision;
and (5) failing to make court payments to the probation officer as directed by
the court.
2
The trial court held a violation hearing, where Diaz admitted to all of
the violations listed in the affidavit. The trial court then noted Diaz’s status as
a violent felony offender of special concern. Diaz’s counsel argued that
community control should be reinstated and requested Diaz be placed into
another rehabilitation program. The State did not object to that resolution,
made no recommendation and deferred to the trial court to impose
sentencing. At the conclusion of the hearing the trial court found Diaz had
violated his community control “in a material respect” and stated:
THE COURT: Well, Mr. Diaz, I give [Diaz’s Counsel]
all the credit in the world but this isn’t even a close
case. This, in all due respect, this screams out for
finally getting what you should have gotten a long
time ago, in my view. I’ve gone through this file with
meticulous care to understand and, even though you
score prison, you got this multiple, months, days,
years, jail sentence and community control, and you
got residential. This was after being violent felony
offender of special concern and committing two new
crimes while you’re on supervision for that. Then,
whatever the explanation is, you’re an absconder. So
to me — and you already had residential, so this one
is --
THE DEFENDANT: I just want to get another chance.
THE COURT: Yes, sir. I know what you want but,
unfortunately, the law does not support that in any
way, shape or form, in my humble opinion. You’ve
been given couple of chances to avoid the prison
sentence that was spelled out but you didn’t get —
you got residential, you were in warrant status. So
the Court is going to revoke the community control,
in each of these cases.
3
The trial court then revoked Diaz’s community control and sentenced him to
60 months in prison as a violent felony offender of special concern. This
appeal followed.
LEGAL ANALYSIS
Diaz’s sole argument on appeal is that the trial court erred in revoking
his community control because although he admitted to violating his
community control, the trial court never made the specific finding that Diaz’s
violations were willful and substantial. We find this argument meritless.
Section 948.06(2)(a), Florida Statutes, sets forth a trial court’s basic
duties in a violation of probation or community control proceeding where a
probationer admits to violating the terms of probation of community control:
The court, upon the probationer or offender being
brought before it, shall advise him or her of such
charge of violation and, if such charge is admitted to
be true, may forthwith revoke, modify, or continue the
probation or community control or place the
probationer into a community control program.
“In accepting a guilty plea to a violation of probation [or community
control], the trial court need not comply with the requirements of Florida Rule
of Criminal Procedure 3.172.” Edwards v. State, 721 So. 2d 744, 745 (Fla.
4th DCA 1998). Instead, where a defendant enters a plea of admission “the
trial court shall, prior to revoking his probation or entering sentence, hold an
admission colloquy.” Johnson v. State, 107 So. 3d 1153, 1154 (Fla. 1st DCA
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2013). “At a minimum, the colloquy must inform the defendant of the
allegations against him, his right to counsel, and the consequences of an
admission or the right to a hearing and it shall afford him an opportunity to
be heard.” Id. The trial court is not thereafter required to make any factual
findings unless the defendant does not wish to enter an admission. See
Balsinger v. State, 974 So. 2d 592, 593 (Fla. 2d DCA 2008).
Here, prior to accepting Diaz’s plea of admission, the trial court
conducted a thorough colloquy to ensure he understood his rights and the
potential consequences of his admission. The trial court proceeded to read
all five violations of community control listed in the affidavit and Diaz entered
a plea of admission to each one. Diaz also entered a written plea indicating
he understood he was admitting to each violation of his community control
as outlined in the affidavit.
Upon a plea of guilty to an allegation of probation violation, “there is no
requirement that there be a determination as to the factual basis of the plea.”
Johnson v. State, 776 So. 2d 1024, 1025 (Fla. 1st DCA 2001) (citing Douglas
v. State, 433 So. 2d 12, 13 (Fla. 1st DCA 1983)). Accordingly, the moment
Diaz entered a plea of admission to the violations of his community control,
the trial court was not required to explicitly make a finding that Diaz’s
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violations were willful and substantial. 1 Here, all the allegations of violation
in the affidavit were material. Diaz’s admission alone was sufficient to
establish he willfully and substantially violated his community control. See
Lopez v. State, 722 So. 2d 936, 937 (Fla. 4th DCA 1998) (“Absence from the
home without permission supports a finding of a willful and substantial
violation of community control.”); Smith v. State, 909 So. 2d 421, 423 (Fla.
1st DCA 2005) (“Appellant’s failure to report to his supervising officer in a
timely manner constitutes a substantial, willful violation of the terms of his
community control.”).
Importantly, the trial court noted Diaz was a violent felony offender of
special concern. Pursuant to section 948.06(9)(d)1., Florida Statutes, a
defendant who is a violent felony offender of special concern is “not eligible
for an alternative sanction,” such as placement in a residential treatment
program if they violate their community control. Thus, because Diaz
admitted to all the violations listed in the affidavit, the trial court did not err by
revoking Diaz’s community control.
Affirmed.
1
Diaz does not contend that his plea was not freely or voluntarily given or
that he was not properly appraised of the potential consequences of his
admission.
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