Appeals from the Circuit Court for Miami-Dade County, Alberto
Milian, Judge. Lower Tribunal Nos. 07-23332 & 07-23026A
J. Martinez, Public Defender and Susan S. Lerner, Assistant
Public Defender, for appellant.
Moody, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
EMAS, C.J., and FERNANDEZ, and LOBREE, JJ.
McCray appeals the trial courts final order of revocation of
probation and the order sentencing him to thirty years in
prison, followed by twenty years probation on a second-degree
murder offense, and concurrent thirty years on a cocaine
trafficking offense. We reverse, finding that the trial court
failed to make the required written findings under section
948.06(8)(e), Florida Statutes (2017), that, as a violent
felony offender of special concern (VFOSC), McCray would pose
a danger to the community.
pleaded guilty to trafficking in cocaine and to second-degree
murder with a firearm. On May 26, 2015, he was driving his
fiancé s vehicle when he was pulled over by City of
Homestead Police Department Officer Raul Perez for driving
without his headlights on. Upon discovering a domestic
violence alert under McCrays license, Officer Perez asked
McCray to exit the vehicle, intending to execute an arrest.
McCray began to flee and Officer Perez ordered him to stop,
but McCray did not comply and continued to run. Detective
Robert Morris responded to the scene and commanded McCray to
stop. McCray complied but was later tasered for failing to
put his hands behind his back after being ordered to do so.
During an inventory search of the vehicle, a marijuana
cigarette was discovered in the center console ashtray.
trial court held a hearing on an affidavit of violation of
probation that alleged, in pertinent part, that McCray
violated his probation by resisting an officer without
violence and possessing a small amount of cannabis. After the
hearing, the trial court found McCray in violation of
probation and found that McCrays probation violation was
"willful, substantial and supported by the greater
weight of the evidence." No other findings were made in
the trial courts oral pronouncement. After a sentencing
hearing, the trial court reversed McCrays probation and
sentenced him to thirty years incarceration, with a
twenty-five-year minimum mandatory sentence, followed by
twenty years of reporting probation for the second-degree
murder offense. The trial court further sentenced McCray to a
concurrent sentence of thirty years for the cocaine
raises two points on appeal, one of which we find has merit.
McCray claims he is entitled to a new sentencing hearing
because the trial court failed to follow the requirements of
section 948.06(8)(e), which requires a finding that the
defendant poses a danger to the community, before sentencing.
standard of review for determining whether a trial court
erred in designating a defendant as a VFOSC is de
novo review. Williamson v. State, 180 So.3d
1224, 1224 (Fla. 1st DCA 2015). The legality of a trial
courts sentencing is likewise subject to de novo
review. Whittaker v. State, 223 So.3d 270, 272 (Fla.
4th DCA 2017).
VFOSC includes a person who is on "felony probation or
community control related to the commission of a qualifying
offense committed on or after the effective date of this
act." § 948.06(8)(b) 1., Fla. Stat. (2017). A qualifying
offense under the statute includes murder. § 948.06(8)(c) 2.,
Fla. Stat. (2017). If a person qualifies as a VFOSC and
violates a non-monetary condition of probation, the trial
court must make written findings as ...