TERRANCE ROGERS v. State

• Court: District Court of Appeal of Florida
• Decided: April 7, 2021
• Docket: 20-1083
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 7, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1083 Lower Tribunal No. F19-15141 ________________

Terrance Rogers, Appellant,

vs.

The State of Florida, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.

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. 1 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. 2 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).

Reversed and remanded for further proceedings.

1 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. 2 “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).