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Herrera v. State

Florida Court of Appeals, Second District

December 4, 2019



          Appeal from the Circuit Court for Charlotte County; Donald H. Mason, Judge.

          Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, for Appellee.

          MORRIS, JUDGE.

         In this appeal filed pursuant to Anders v. California, 386 U.S. 738 (1967), Isaac Herrera appeals the revocation of his probation and resulting sentence for the underlying crime of driving while license suspended (third conviction). We affirm but remand for the trial court to strike certain violations from the revocation order.[1]

         I. Condition 5 (no new law violations)

         The order of revocation lists four violations of condition 5 which barred Herrera from committing new law violations. However, while "the State need only prove by a preponderance of the evidence that the probationer committed [an] unlawful act[, ] . . . 'it is improper to revoke probation solely on proof that the probationer has been arrested.'" Contreras v. State, 274 So.3d 532, 534 (Fla. 2d DCA 2019) (quoting Hodges v. State, 920 So.2d 158, 160 (Fla. 2d DCA 2006)). Thus, if the State fails to present evidence that a probationer committed a new law violation and if the record is unclear whether the probationer entered a plea to the charge or whether a plea resulted in a conviction, the evidence is insufficient to establish that a new law violation occurred for purposes of revoking probation on that basis. See id.

         Here, the record reflects that Herrera entered a no contest plea, was convicted, and was sentenced to a jail term for committing the new law violation of resisting an officer without violence. Indeed, Herrera admitted to this fact at the violation of probation (VOP) hearing. That particular violation of condition 5 was proven and was sufficient, by itself, to revoke Herrera's probation. See Green v. State, 19 So.3d 449, 450 (Fla. 2d DCA 2009); Matthews v. State, 943 So.2d 984, 986 (Fla. 2d DCA 2006).

         However, the record does not support a revocation based on the three remaining condition 5 violations. The transcript of the VOP hearing reflects that defense counsel notified the court that while there were "a number of condition 5 violations alleged against Mr. Herrera . . . the agreement with the State [is that] Mr. Herrera is admitting to the violation of one condition 5 violation, specifically, resisting an officer without violence." During discussion about the dates of arrest for the various new law violations, the trial court clarified that there had been "three arrests." At that point, defense counsel asserted that the four new law violations were a result of three arrests but that "[t]he other three counts were nolle prossed" and that Herrera "denies the other three." Defense counsel referred to the remaining violations as "technical violations." When Herrera was asked during the plea colloquy whether he admitted "[t]o the violations of probation, specifically the Condition 5, resisting[, ] and the technical violations," Herrera responded "No-yes. Well yes." There was no further specific discussion about the nature of any of the violations.

         It is clear then that the State did not prove by a preponderance of the evidence that Herrera committed the three remaining condition 5 violations. In light of defense counsel's statement that Herrera denied the three technical violations and Herrera's response to the court, we cannot conclude that Herrera intended to admit those violations. Thus, on remand, the trial court will need to strike three of the condition 5 violations.

         II. Condition 10 (failure to pay drug testing costs and court costs)

         The affidavit of violation in this case listed two condition 10 violations, one for failing to pay court costs and another for failing to pay drug testing costs. During the oral pronouncement of revocation and sentence, the trial court merely stated that it found that Herrera was freely, voluntarily, and intelligently entering an admission and that "based on those admissions . . . that he has willfully and substantially violated the terms and conditions of his probation." But the order of revocation only lists one violation of condition 10, without specifying whether it was the failure to pay court costs or the failure to pay drug testing costs that served as the basis for the violation.

         Beyond the possible discrepancy between the vague oral pronouncement and the written revocation order, however, is the fact that Herrera should not have been found in violation for either alleged failure to pay. First, the order of probation did not include a requirement for Herrera to pay drug testing costs either as a standard or special condition of probation. While condition 10 does require Herrera to "pay restitution, court costs and/or fees in accordance with special conditions imposed or in accordance with the attached orders," there is no requirement under the "special conditions" portion of the order requiring Herrera to pay for drug testing. In fact, condition 11-which requires Herrera to submit to random drug and alcohol testing-is silent on the issue of payment. This error likely went unnoticed at the VOP hearing due to the fact that ...

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