Opinion
No. 3D20-1083
04-07-2021
Terrance ROGERS, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Before FERNANDEZ, LINDSEY, and MILLER, JJ.
PER CURIAM.
Appellant, Terrance Rogers, challenges an order revoking his probation. Because the record is devoid of any finding as to whether the technical violation precipitating the revocation was willful and substantial, and this court is precluded from inferring "willfulness from the trial court's determination that [a]ppellant violated his probation," we reverse and remand for the lower tribunal to make such a finding. Giambrone v. State, 109 So. 3d 1279, 1280 (Fla. 1st DCA 2013) (citation omitted); see Del Valle v. State, 80 So. 3d 999, 1011 (Fla. 2011) ("The absence of a specific finding of willfulness in a probation revocation proceeding cannot be considered harmless error. An automatic revocation of probation without such a finding would be unconstitutional."); see also State v. Meeks, 789 So. 2d 982, 987 (Fla. 2001) ; Duquesne v. State, 242 So. 3d 1183, 1185 (Fla. 3d DCA 2018) ; Thompson v. State, 172 So. 3d 527, 528 (Fla. 3d DCA 2015).
As properly and commendably conceded by the State, the written sentence fails to conform with the oral pronouncement. However, our remand renders this issue moot.
"The requirement that a willful and substantial violation of probation be found before probation can be revoked is rooted in the fundamental fairness notion required by due process." Del Valle v. State, 80 So. 3d 999, 1013 (Fla. 2011).
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Reversed and remanded for further proceedings.