DARRELL MORRIS v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: June 7, 2023
• Docket: 22-1232
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 7, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1232 Lower Tribunal No. F17-18009 ________________

Darrell Morris, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jose Fernandez, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Sandra Lipman, Senior Assistant Attorney General, for appellee.

Before LOGUE, HENDON and BOKOR, JJ.

HENDON, J. Darrell Morris appeals the trial court’s order revoking his probation and

the sentencing order. We affirm without prejudice to allow Morris to file timely

postconviction motions as set forth in this opinion.

The Department of Corrections filed a Corrected 2nd Amended

Affidavit of Violation of Probation. The affidavit alleged Morris violated his

probation by committing two new law violations (attempted pre-meditated

murder with a deadly weapon/aggravated battery and possession of a

firearm by a convicted felon), by failing to pay costs of supervision and drug

testing fees, and by failing to complete community service hours. The

affidavit further provided that Morris qualifies as a Violent Felony Offender of

Special Concern (“VFOSC”).

On June 21, 2022, the trial court conducted a violation of probation

hearing. At the conclusion of the hearing, the trial court orally ruled that it

was revoking Morris’s probation based on him committing the offenses of

attempted premeditated murder with a deadly weapon or by aggravated

battery, and possession of a firearm by convicted felon. Further, the trial

court orally ruled it was sentencing Morris to thirty years in state prison as a

habitual offender, with credit for time served. Thereafter, the State informed

the trial court that Morris qualifies as a VFOSC, and asked: “Does Your

Honor find him to be a danger?” In response, the trial court stated, “Yes.”

2 Thereafter, Morris’s counsel did not raise any objections.

On the same day of the hearing, the trial court entered an order

revoking Morris’s probation. In the order, the trial court found that Morris

violated his probation by committing the alleged two new law violations, by

failing to pay costs of supervision and drug testing fees, and by failing to

complete community service hours. The trial court also entered the

sentencing order, which sentenced Morris as a habitual felony offender to a

term of thirty years in prison, and as a VFOSC. Once again, Morris’s counsel

did not raise any objections.

Morris appealed the order revoking his probation and the sentencing

order. Prior to and during the pendency of this appeal, Morris did not file in

the lower tribunal a motion pursuant to Florida Rule of Criminal Procedure

3.800(b).

Morris contends he is entitled to a new sentencing hearing because

the trial court failed to comply with the statutory requirements under the

VFOSC statute—section 948.06(8)(e)—by failing to make written findings as

to whether he poses a danger to the community. Because the argument was

not preserved for appellate review, we affirm without prejudice to allow Morris

to file a timely motion pursuant to rule 3.800(b) raising this argument.

If a probationer, such as Morris, qualifies as a VFOSC and is found to

3 violate a non-monetary condition of probation, the trial court is required to

make written findings as to whether the probationer poses a danger to the

community pursuant to section 948.06(8)(e), Florida Statutes (2022). “The

written findings requirement of section 948.06(8)(e) is mandatory, not

discretionary.” McCray v. State, 283 So. 3d 406, 408 (Fla. 3d DCA 2019). If

the trial court finds that the VFOSC poses a danger to the community, the

trial court “shall revoke probation and shall sentence the offender up to the

statutory maximum, or longer if permitted by law.” § 948.06(e)(2)a., Fla. Stat.

(2022). However, if the trial court determines that the VFOSC does not pose

a danger to the community, the trial court “may revoke, modify, or continue

the probation or community control or may place the probationer into

community control as provided in this section.” § 948.06(e)(2)b., Fla. Stat.

(2022).

Here, the claim raised by Morris was not brought to the trial court’s

attention at the time of sentencing or by motion filed pursuant to Florida Rule

of Criminal Procedure 3.800(b). As such, the claim was not preserved for

appellate review. See Swain v. State, Case No. 3D22-883, 2023 WL

3081958 (Fla. 3d DCA Apr. 26, 2023); see also Fla. R. App. P. 9.140(e) (“A

sentencing error may not be raised on appeal unless the alleged error has

first been brought to the attention of the lower tribunal: (1) at the time of

4 sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure

3.800(b).”). As Morris’s claim was not preserved for appellate review, we

affirm without prejudice to allow Morris to file a timely 3.800(b) motion in the

lower tribunal.

Morris argues that this Court should quash the order revoking his

probation because it does not conform with the trial court’s oral

pronouncements at the violation of probation hearing. Because the argument

was not preserved for appellate review, we affirm without prejudice to allow

Morris to raise this claim in a timely and appropriate postconviction motion.

See Daniels v. State, 118 So. 3d 996, 997 (Fla. 1st DCA 2013) (“Claims that

the written judgment and sentence do not conform to the oral pronouncement

must be preserved either with a contemporaneous objection, if possible, or

by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion before filing

the initial brief.”).

Based on the above analysis, we affirm without prejudice to file timely

Affirmed without prejudice.