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McCloud v. State

Florida Court of Appeals, First District

June 8, 2018

Ruben McCloud, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.

          Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.

          ROWE, J.

         Ruben McCloud appeals the trial court's order revoking his probation based on a new law violation, specifically McCloud's convictions for two counts of attempted manslaughter by act. Because the trial court did not err in revoking probation, we affirm.

         Background

         On October 14, 2008, McCloud was charged in Leon County with engaging in an organized scheme to defraud. He pleaded no contest on January 15, 2009, and was sentenced to 210 days in jail followed by 12 months of community control and 2 years of probation.

         On April 6, 2010, and while still on probation, McCloud was arrested and charged in Duval County with two counts of attempted murder, one count of shooting or throwing deadly missiles into a dwelling or building, and one count of possession of a firearm by a convicted felon. The Department of Corrections filed a violation of probation affidavit in Leon County the next day, alleging McCloud violated condition five of his probation by failing to live and remain at liberty without violating any law and condition ten by failing to make payments to the probation officer as directed. The affidavit listed as new law violations the same offenses that formed the basis of the Duval County charges.

         McCloud went to trial on the Duval County charges. The jury found him guilty of two counts of attempted second-degree murder and one count of shooting or throwing deadly missiles. McCloud appealed the judgment and sentence.

         While his appeal was pending, the Leon County court held a violation of probation hearing. The State presented a certified copy of McCloud's Duval County judgment and sentence, and the court revoked McCloud's probation. He was sentenced to 15 years' imprisonment on the original charge of engaging in an organized scheme to defraud.

         On October 9, 2014, McCloud's Duval County convictions were reversed and the case was remanded for a new trial. McCloud v. State, 150 So.3d 822 (Fla. 1st DCA 2014). Because the Leon County court revoked probation solely on grounds of the overturned convictions, we granted McCloud a belated appeal and reversed the revocation order. McCloud v. State, 213 So.3d 971 (Fla. 1st DCA 2016). We remanded for the Leon County court to hold a new violation of probation hearing.

         Before the violation of probation hearing, McCloud was retried in the Duval County case. The jury found him guilty of two counts of "attempted manslaughter by act, a lesser[-]included offense." At the remanded violation hearing, the State proceeded only on the claim that McCloud committed a new law violation and presented a certified copy of McCloud's Duval County judgment and sentence for attempted manslaughter by act. The court determined the certified conviction constituted evidence of a willful violation, revoked McCloud's probation, and sentenced him to 15 years' imprisonment.

         McCloud appeals the revocation order arguing that the trial court erred by revoking probation on the basis of violations not alleged in the probation affidavit. Citing our recent decision in Bonner v. State, 138 So.3d 1101 (Fla. 1st DCA 2014), McCloud argues that because the offense of attempted manslaughter by act was not one of the new law violations listed in the violation ...


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