Opinion
2D22-1957
07-07-2023
LA DARRION SHADRACK DAYS, Appellant, v. STATE OF FLORIDA, Appellee.
Howard L. Dimmig, II, Public Defender and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.
Howard L. Dimmig, II, Public Defender and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.
KELLY, Judge.
La Darrion Shadrack Days appeals from an order revoking his probation and sentencing him as a violent felony offender of special concern (VFOSC) to five years in prison for the underlying crime of aggravated stalking. We affirm Days' revocation without further comment. However, because Days was denied the opportunity to present evidence before he was sentenced, we reverse his sentence and remand for further proceedings.
The day before Days' revocation of probation hearing, defense counsel requested a continuance so Days could have a mental health evaluation to be used in mitigation at sentencing. The court responded that a continuance was unnecessary because sentencing could be set off:
Well, we can have the hearing, and then I can decide what the sentence would or would not be after the hearing. I mean, I don't have to postpone the hearing. I can get that part of it done. And then, if he's found guilty at his VOP hearing, I will set sentencing far enough away so you can do that.
Defense counsel accepted the court's offer. However, rather than honoring the agreement, the court sentenced Days, over objection, to the statutory maximum immediately following the hearing. This was error.
"The court shall entertain submissions and evidence by the parties that are relevant to the sentence." Fla. R. Crim. P. 3.720(b). Rule 3.720(b) is mandatory, and failure to comply with it requires reversal. See Goudreau v. State, 263 So.3d 822, 823 (Fla. 2d DCA 2019) (reversing and remanding for a new sentencing hearing in a probation revocation proceeding where the court refused to allow the defendant to address the court at sentencing); Davenport v. State, 787 So.2d 32, 32 (Fla. 2d DCA 2001) (reversing for a new sentencing hearing where the defense was refused the opportunity to present evidence at the sentencing hearing).
The State concedes that a defendant is entitled to present mitigation evidence at sentencing but maintains the court is not required to delay sentencing for him to do so. See Manigault v. State, 534 So.2d 856, 857 (Fla. 1st DCA 1988) ("The decision as to whether sentencing should be further delayed is a matter within the court's discretion."); see also Jones v. State, 125 So.3d 917, 919 (Fla. 4th DCA 2013) (holding that no violation of rule 3.720(b) occurred where the defendant was given the opportunity to present mitigation evidence at sentencing but "did not capitalize on that opportunity"). Here, however, the court agreed to postpone sentencing pending Days' mental health evaluation. By reneging on this agreement, the court effectively denied Days the opportunity to present mitigation evidence. Under these circumstances, we conclude the court abused its discretion in refusing to delay sentencing in accordance with its agreement. See Goudreau, 263 So.3d at 823. Therefore, we reverse Days' sentence and remand for a new sentencing hearing.
Finally, Days argues that the trial court did not follow the statutory procedure in sentencing him as a VFOSC. Specifically, he claims that the court failed to make written findings that he posed a danger to the community as required by section 948.06(8)(e), Florida Statutes (2022). We agree.
Days preserved this argument for appeal by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b).
Days qualified as a VFOSC pursuant to section 948.06(8)(c)(15). See § 948.06(8)(b)(1) (stating that a VFOSC includes a person who is on "[f]elony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act"). Because Days qualifies as a VFOSC and violated his probation, the trial court was statutorily obligated to make written findings as to whether he posed a danger to the community. See § 948.06(8)(e)(1) (providing that the court "shall" make written findings regarding whether the VFOSC poses a danger to the community and listing the factors to be considered by the court); McCray v. State, 283 So.3d 406, 408 (Fla. 3d DCA 2019) ("The written findings requirement of section 948.06(8)(e) is mandatory, not discretionary."); Barber v. State, 207 So.3d 379, 384 (Fla. 5th DCA 2016) ("[Section 948.06(8)(e)] specifically provides that 'the court shall' make written findings if the court determines that a violent felony offender of special concern has committed a violation of probation"). Thus, on remand, the trial court is directed to make the statutorily required written findings under section 948.06(8)(e) when imposing sentence. See id. at 385.
Affirmed in part, reversed in part, and remanded with directions.
SLEET, C.J., and NORTHCUTT, J., Concur
Opinion subject to revision prior to official publication.