Third District Court of Appeal
State of Florida
Opinion filed May 1, 2019.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1282
Lower Tribunal No. 16-10576
________________
The State of Florida,
Appellant,
vs.
Daniel Rincon,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ivonne Cuesta
and Alberto Milian, Judges.
Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public
Defender, for appellee.
Before SCALES, LINDSEY and MILLER, JJ.
SCALES J.
The State of Florida appeals (i) the trial court’s May 16, 2018 dismissal of
an Affidavit of Violation of Probation, setting forth an alleged probation violation
by appellee, the defendant below, Daniel Rincon; and (ii) the trial court’s
contemporaneous termination of Rincon’s probation. The State maintains that the
trial court neglected to abide by the procedural imperatives of section 948.06(8) of
the Florida Statutes. We agree, reverse the order on appeal, and remand for further
proceedings.
Statement of the Case
On June 24, 2016, Rincon pleaded guilty to Aggravated Battery on a
Pregnant Victim and Strong-Arm Robbery (lower tribunal case number F16-9231).
Rincon had struck his pregnant girlfriend and taken a piece of jewelry (with a
value of under $100) from her. He received a sentence of four years of probation.1
The offense of battering a pregnant woman qualified Rincon as a “violent felony
offender of special concern,” pursuant to section 948.06(8)(b)1. and (c)3.
On May 9, 2018, the Florida Department of Corrections filed an Affidavit of
Violation of Probation, alleging that Rincon had violated his probation when the
police arrested him on May 5, 2018, for driving with a suspended license. At first
appearance on May 9th, the trial court ordered Rincon held without bond.
1On the same day, Rincon pleaded guilty to Possession of a Controlled Substance
and Possession of Marijuana (lower tribunal case number F16-10576). He received
a probation sentence of four years and one day. The trial court ordered that the
probation sentences in F16-9231 and F16-10576 run concurrently.
2
Subsequently, the State and Rincon entered into plea negotiations, but never
reached an agreement. The parties came before the trial court on May 16, 2018, for
a plea hearing. At that point, Rincon had been in jail for eleven days.
At this hearing, the trial court learned the following information about
Rincon: (i) this was Rincon’s first probation violation in two years; (ii) Rincon had
completed both a domestic violence intervention program and a drug evaluation
program, and had completed a portion of a parenting course; (iii) the State’s plea
offer was thirty days in jail (including the time Rincon had served already),
reinstatement of probation, and Rincon’s admission to the underlying suspended
license offense; (iv) the alleged probation violation made Rincon eligible for a
prison term of between approximately three and thirty-five years; (v) the pregnant
woman Rincon battered had given birth to their child and recently had given birth
to the second of their children; and (vi) Rincon was employed and supporting his
family.
The trial court responded to this information – sua sponte and over the
State’s objection – by dismissing the violation of probation and by terminating
Rincon’s probation “unsuccessfully.”
Analysis
Because Rincon qualified as a “violent felony offender of special concern,”
the trial court was obligated to follow the procedures of section 948.06(8). While
3
section 948.06(2)(c) authorizes the trial court to dismiss a probation violation,
section 948.06(8), by its express provisions, controls over section 948.06(2)(c). §
948.06(8)(a), Fla. Stat. (2018). Section 948.06(8)(d) provides:
The court shall not dismiss the probation or community control
violation warrant pending against an offender enumerated in this
paragraph without holding a recorded violation-of-probation hearing
at which both the state and the offender are represented.
§ 948.06(8)(d), Fla. Stat. (2018).
Subsection (8)(e) further provides that, if, after the trial court conducts this
evidentiary hearing, the trial court determines the violent felony offender of special
concern has violated probation,2 the trial court must make a series of written
findings as to whether the offender poses a danger to the community. §
948.06(8)(e)1., Fla. Stat. (2018); see Barber v. State, 207 So. 3d 379, 384 (Fla. 5th
DCA 2016). If the trial court finds that the offender poses a danger to the
community, then the trial court must revoke probation and sentence the offender to
the statutory maximum or longer, if the law permits. § 948.06(8)(e)2.a., Fla Stat.
(2018). If, however, the trial court finds that the offender does not pose a danger to
the community, then the trial court “may revoke, modify or continue the probation.”
§ 948.06(8)(e)2.b.
2If, at this evidentiary hearing, the trial court finds that the violent felony offender
of special concern has not violated probation, the trial court presumably would
dismiss the violation warrant. § 948.06(8)(d), Fla. Stat. (2018).
4
The trial court did not follow the procedural requirements of section
948.06(8)(d) and (e).3 Whatever the trial court observed in Rincon’s personal
development during the previous two years required a deeper exploration in a formal
hearing and the requisite written findings.4
Therefore, we reverse the order on appeal and remand for further proceedings
to be conducted in accordance with section 948.06(8).
Reversed and remanded with instructions.
3We express no opinion as to whether the parties in this case could have fashioned
a plea agreement that would have pre-empted trial court compliance with the
procedural dictates of section 948.06(8).
4 We find no merit in Rincon’s argument that the trial court’s dismissal of his
probation violation and termination of his probation occurred because the trial
court participated in a plea negotiation.
5