final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No.
Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Mitchell A.
Egber, Assistant Attorney General, West Palm Beach, for
Jimeal Smith appeals the trial court's failure to enter
written orders revoking his probation and finding him to be a
danger to the community as a violent offender of special
concern. He asserts that the lack of written orders requires
reversal. We agree, and reverse for entry of proper orders.
appellant's probation revocation hearing, the trial court
found him to be a violent offender of special concern
pursuant to section 948.06(8)(b), Florida Statutes (2016).
Thereafter, the trial court discussed whether appellant was a
danger to community and stated, "The evidence presented
is while on probation, he violates his probation by clocking
somebody in the mouth. How can I find that he's not a
danger to the community? So the difficulty is his history.
That's the problem." The trial court then found that
appellant willfully and substantially violated his
sentencing, the trial court also concluded that appellant was
a danger to the community, and sentenced him to 36 months
imprisonment. However, the trial court did not enter a
written order revoking appellant's probation, nor did it
make a written finding about his danger to the community.
legality of a trial court's sentencing is reviewed de
novo." Whittaker v. State, 223 So.3d 270, 272
(Fla. 4th DCA 2017).
appellant's first point on appeal, the trial court's
failure to enter an order revoking appellant's probation
was error, but one that can be corrected on remand by the
filing of a proper written order. See King v. State,
46 So.3d 1171, 1172 (Fla. 4th DCA 2010) ("If a trial
court revokes a defendant's probation, the court is
required to render a written order noting the specific
conditions of probation that were violated.").
appellant's second point, "[i]f the court, after
conducting the hearing . . ., determines that a violent
felony offender of special concern has committed a violation
of probation or community control[, ]" then the judge
must make written findings as to whether that individual
poses a danger to the community. § 948.06(8)(e).
"[T]he written findings requirement of section
948.06(8)(e) is mandatory, not discretionary."
Barber v. State, 207 So.3d 379, 384 (Fla. 5th DCA
2016). "However, because a guidelines sentence
'would be legal irrespective of the findings made
pursuant to section 948.06(8)(e), ' a trial court's
failure to make the mandated written findings under section
948.06(8)(e) does not necessitate reinstatement of the
defendant's probation." Whittaker, 223
So.3d at 274 (quoting Barber, 207 So.3d at 383-85).
"'the proper remedy is to reverse the sentencing
order and remand for another sentencing hearing with
directions that the trial court make the necessary written
findings under section 948.06(8)(e) when imposing its
sentence.'" Id. (quoting Barber,
207 So.3d at 385). However, in those cases where the trial
court orally pronounces a reason under this section for its
finding that an individual poses a danger to the community,
but fails to provide a written order, then "the proper
remedy is to affirm the revocation of the defendant's
probation, but remand for entry of a written order conforming
to the court's oral pronouncement." Arnone v.
State, 204 So.3d 556, 557 (Fla. 4th DCA 2016).
the court made an oral pronouncement finding appellant to be
a danger to the community due to "clocking somebody in
the mouth" while on probation, which was consistent with
one or more factors listed under section 948.06(8)(e)(1).
See § 948.06(8)(e)(1)(a) ("The nature and
circumstances of the violation and any new offenses
charged."), .06(8)(e)(1)(b) ("The offender's
present conduct, including criminal convictions.").
Therefore, we affirm the revocation of appellant's
probation, but remand for the entry of written orders
revoking appellant's probation and conforming to the
trial court's oral pronouncement of its determination
that appellant posed a danger to the community. See
Whittaker, 223 So.3d at 274; Barber, 207 So.3d
at 384; Arnone, 204 So.3d at 557. This is consistent
with both our prior cases and section 948.06(8)(e). Appellant
need not be present for either action. See, e.g.,
Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th
DCA 2001) ("The imposition of a sentence is a crucial
stage at which the defendant is ...