final until disposition of timely filed motion for rehearing.
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 court's 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 McCray's 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
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 McCray's probation violation was
"willful, substantial and supported by the greater
weight of the evidence." No other findings were made in
the trial court's oral pronouncement. After a sentencing
hearing, the trial court reversed McCray's 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
court's sentencing is likewise subject to de
novo review. Whittaker v. State, 223 So.3d 270,
272 (Fla. 4th DCA 2017).
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 to whether the
VFOSC poses a danger to the community. Whittaker,
223 So.3d at 273. Section 948.06(8)(e) states:
If the court, after conducting the hearing required by
paragraph (d), determines that a violent felony offender of
special concern has committed a violation of probation or
community control other than a failure to pay costs, fines,
or restitution, the court shall: Make
written findings as to whether or not the violent felony
offender of special concern poses a danger to the community.
(Emphasis added). The written findings requirement of section
948.06(8)(e) is mandatory, not discretionary. Barber v.
Tate, 207 So.3d 379, 384 (Fla. 5th DCA 2016). "If
the court [finds] that a [VFOSC] poses a danger to the
community, the court shall revoke probation and shall
sentence the offender up to the statutory maximum, or longer
if permitted by law." § 948.06(8)(e)2.a., Fla.
Stat. (2017). "If the court [finds] that a [VFOSC] does
not pose a danger to the community, the court may revoke,
modify, or continue the probation or community control or may