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McCray v. State

Florida Court of Appeals, Third District

October 23, 2019

Terrance McCray, Appellant,
v.
The State of Florida, Appellee.

         Not 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

          Carlos J. Martinez, Public Defender and Susan S. Lerner, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

          Before EMAS, C.J., and FERNANDEZ, and LOBREE, JJ.

          FERNANDEZ, J.

         Terrance 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.

         McCray 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 ashtray.

         The 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 trafficking offense.

         McCray 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. We agree.

         The 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).

         A 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 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." ยง 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 ...


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