final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Nos.
06-14973A & 07-18812, Miguel M. De La O, Judge.
J. Martinez, Public Defender, and Natasha Baker-Bradley,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Jill D. Kramer, Assistant
Attorney General, for appellee.
SUAREZ, LAGOA and SCALES, JJ.
Chaney appeals his sentences in case numbers F06-14973A and
F07-18812, which were imposed after he pled guilty to
violating probation in both cases. Because Chaney reserved
the right to challenge, on appeal, the trial court's
ruling that he violated probation in case number F07-18812,
for the following reasons, we vacate Chaney's guilty plea
to violating probation in case number F07-18812 and remand
for resentencing on case number F06-14973A.
Relevant Factual and Procedural Background
number F06-14973A, the State charged Chaney with one count of
second degree murder and one count of possession of a firearm
by a convicted felon, both offenses occurring on December 29,
2005. While Chaney was incarcerated awaiting trial in case
number F06-14973A, the State charged Chaney in case number
F07-18812 with one count of aggravated battery by a prisoner,
for breaking the jaw of another inmate on June 1, 2007.
March 31, 2009, Chaney pled guilty in both cases. The
sentencing order in case number F06-14973A reflects that the
trial court sentenced Chaney to seven years in prison
followed by five years of probation on both the second degree
murder and possession of a firearm by a convicted felon
charges, to run concurrent with each other. The trial court
also entered an Order of Supervision spelling out the
conditions of Chaney's probation in case number
March 31, 2009 sentencing order in case number F07-18812
reflects that the trial court sentenced Chaney to six years
in prison followed by five years of probation, to run
concurrent with Chaney's sentence in case number
F06-14973A. While the sentencing order in case number
F07-18812 references that the terms and conditions of
Chaney's probation in case number F07-18812 are "set
forth in a separate order entered herein, "
(emphasis added), the record reflects no such separate order
spelling out Chaney's probation conditions in case number
was released from prison in July 2012; whereupon, he was
placed on probation. On January 16, 2015, the State filed
Violation of Probation Affidavits against Chaney in case
numbers F06-14973A and F07-18812, alleging that Chaney had
violated the conditions of his probation by testing positive
for marijuana in a urine sample, and by failing to pay ten
dollars per month towards the cost of his
probation violation hearing was delayed after it became
apparent that important pieces of the record were missing.
There is no March 31, 2009 sentencing transcript in the
record. Also, even though both the lower court docket sheet
and the sentencing order in case number F07-18812 state that
Chaney was put on probation in that case, there is no Order
of Supervision for case number F07-18812. There is only an
Order of Supervision in the record for case number
F06-14973A, which does not cross-reference case number
attempts to locate and reconstruct the missing portions of
the record proved futile, the trial court, on April 20, 2015,
held a probation violation hearing. At this hearing, the
trial court found insufficient evidence to prove that Chaney
had violated probation for failure to pay money, but did find
Chaney in violation for testing positive for marijuana as to
case number F06-14973A. The court also found that Chaney was
a danger to society for purposes of the VFOSC ...