Numerous Florida cases have recognized the distinction between substantive versus technical/nonsubstantive violations set forth in the statute at issue here. See, e.g., Wilkey v. State, 712 So.2d 847 (Fla. 4th DCA 1998) (remanding for an evidentiary hearing in a post conviction proceeding where youthful offender challenged length of sentence imposed after probation violation because record did not reveal whether violation was substantive or technical); see also Quiles v. State, 777 So.2d 992 (Fla. 2d DCA 2000); Escutary v. State, 753 So.2d 650 (Fla. 3d DCA 2000);Johnson v. State, 736 So.2d 708 (Fla. 2d DCA 1999); Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997); Hill v. State, 692 So.2d 277 (Fla. 5th DCA 1997); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995); Reeves v. State, 605 So.2d 562 (Fla. 2d DCA 1992). While no Florida decision until Meeks had undertaken the task of specifically defining "substantive" or "technical/nonsubstantive," we do gain some insight through an analysis of how specific violations have been classified by various courts.
This section permits a youthful offender to be sentenced to a term longer than 6 years, after revocation of probation if the violation is substantive. Hill v. State, 692 So.2d 277 (Fla. 5th DCA 1997); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996). In this case, Robinson claims his violations of probation were only technical.
Subsequent to the issuance of the mandate, the state filed a motion to recall mandate and for rehearing, asserting that its previous confession of error was itself erroneous. It had failed to realize that the holding of Arnette was based upon the pre-1990 version of section 958.14. Under amended section 958.14, a youthful offender can be sentenced in excess of six years after revocation of probation if the violation was substantive rather than technical. See § 958.14, Fla. Stat. (1995); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995); Darden v. State, 641 So.2d 431 (Fla. 2d DCA 1994); Reeves v. State, 605 So.2d 562 (Fla. 2d DCA 1992). We recalled the mandate and accepted the motion for rehearing as timely filed and received no response from the defendant.
Additionally, the First District Court of Appeal stated that “a trial court may impose a non-youthful offender sentence on a youthful offender who commits violations of probation that involve new substantive offenses ... [and] the trial court [is] not limited to a youthful offender sentence.” Willis v. State, 744 So.2d 1265, 1266 (Fla. 1st DCA 1999) (citing Hill v. State, 692 So.2d 277, 278 (Fla. 5th DCA 1997) (stating that a trial court is permitted to exceed youthful offender maximum sentences); Johnson v. State, 678 So.2d 934, 934–35 (Fla. 3d DCA 1996) (providing that a youthful offender may be sentenced as a non-youthful offender for commission of a substantive violation while on probation); Dunbar v. State, 664 So.2d 1093, 1094 (Fla. 2d DCA 1995)). Accordingly, it is within the trial court's discretion to determine whether a youthful offender should be sentenced as such, or if it should impose a non-youthful offender sentence when a substantive violation occurs.
This certainly implies that the prosecutors and the trial courts have reached the same conclusion as we regarding the distinction between substantive and technical violations under section 958.14, Florida Statutes. See Robinson v. State, 702 So.2d 1346 (Fla. 5th DCA 1997) (youthful offender's admission of marijuana use and to testing positive for marijuana determined to be a separate criminal offense and a substantive violation); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996) (youthful offender's commission of grand theft, burglary, possession of burglary tools and resisting arrest without violence determined to be substantive violations);Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995) (youthful offender's failure to pay the costs of supervision of probation, for not reporting, for not seeking employment, and for not trying to get a GED, determined to be technical violations). For the above reasons, we conclude that Meeks' violation of community control for failure to remain confined to his residence on four dates constitutes a technical violation under section 958.14, Florida Statutes.
Under section 958.14, Florida Statutes (1997), a trial court may impose a non-youthful offender sentence on a youthful offender who commits violations of probation that involve new substantive offenses. See Hill v. State, 692 So.2d 277 (Fla. 5th DCA 1997); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995); Johnson v. State, 678 So.2d 934 (Fla. 3d DCA 1996). Here, appellant violated his probation by committing two new substantive offenses.
See, Meeks v. State, Case No. 1D97-2905 (Fla. 1st DCA March 13, 2000). See also, State v. Arnette, 604 So.2d 482 (Fla. 1992); O'Neal v. State, 667 So.2d 413 (Fla. 4th DCA 1996); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995). REVERSED and REMANDED for resentencing consistent with this opinion.
See § 958.14, Fla. Stat. (1993). The record before the trial court did not reveal whether appellant's violation was substantive or technical. See, e.g., Dunbar v. State, 664 So.2d 1093, 1094 (Fla. 2d DCA 1995). We note that the state has attempted to cure the record deficiency by supplying information to this court in an appendix.
PER CURIAM.Affirmed. See§ 948.06(2)(e), Fla. Stat. (2014) (providing that when a court revokes a defendant's community control it may “impose any sentence which it might have originally imposed before placing the ... offender on probation or into community control”); cf.§ 958.14, Fla. Stat. (2011) (providing that if a defendant was placed on community control as a youthful offender, upon revocation the court may not sentence the defendant to more than six years' imprisonment where the violation is technical or non-substantive); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995) (applying section 958.14 and holding a defendant placed on probation as a youthful offender cannot be sentenced to more than six years' imprisonment following a revocation of probation based upon a technical violation). See also,§ 921.0017, Fla. Stat. (2014) (providing that, following revocation of probation or community control on a split sentence, the trial court shall determine the amount of credit for jail time previously served and shall direct the Department of Corrections to calculate the amount of credit for prison time previously served on the split sentence).
Affirmed. See § 948.06(2)(e), Fla. Stat. (2011) (providing that when a court revokes a defendant's community control it may "impose any sentence which it might have originally imposed before placing the. . . offender on probation or into community control."); cf. § 958.14, Fla. Stat. (2011) (providing that if a defendant was placed on community control as a youthful offender, upon revocation the court may not sentence the defendant to more than six years' imprisonment where the violation is technical or nonsubstantive); Dunbar v. State, 664 So. 2d 1093 (Fla. 2d DCA 1995) (applying section 958.14 and holding a defendant placed on probation as a youthful offender cannot be sentenced to more than six years' imprisonment following a revocation of probation based upon a technical violation).