        Third District Court of Appeal
                                 State of Florida

                             Opinion filed July 22, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-2457
                    Lower Tribunal Nos. 10-14896 & 10-3812
                              ________________

                              Terence Keith Gray,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jorge
Rodriguez-Chomat, Judge.

      Andrew Rier and Daniel Tibbitt, for appellant.

     Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney
General, for appellee.


Before WELLS, LAGOA, and LOGUE, JJ.

      LAGOA, J.

      Terence Keith Gray (“Gray”) appeals from the revocation of his probation

and the thirteen-year sentence imposed upon revocation. We affirm the revocation

in part, reverse in part, vacate the sentence, and remand for resentencing.
      Gray pled guilty to several charges in case number F10-3812 and case

number F10-14896, and the trial court sentenced him to six years of probation in

each case, to run concurrently. The State subsequently filed affidavits of violation

of probation in both cases; the final third amended affidavit in each case alleged

that Gray violated probation by committing the new offenses of aggravated battery

and possession of marijuana.1 After a hearing, the trial court found that Gray

willfully and substantially violated probation for committing the offense of

aggravated battery as alleged in the affidavits. The trial court also based the

revocation on a finding that Gray committed the offense of sexual battery upon a

child less than twelve years of age.2 The sentences imposed in case number F10-

3812 and case number F10-14896 totaled thirteen years in prison. Gray appealed.

      As to the trial court’s finding that Gray willfully violated probation by

committing the new offense of aggravated battery, we find no abuse of discretion.

We, however, reverse the probation revocation to the extent that the trial court

found that Gray violated probation by also committing the sexual battery offense.

The final third amended affidavit filed by the State in each case did not allege that

Gray violated probation by committing the sexual battery offense. As the State

properly concedes, because the affidavits did not allege a violation of probation for


1The affidavits alleged that Gray violated probation condition 5—he failed to live
and remain at liberty without violating any law.
2 The aggravated battery charge stemmed from a jailhouse fight. The State
subsequently nolle prossed the aggravated battery and the sexual battery charges.
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that offense, the trial court erred in revoking Gray’s probation based on that

additional ground. See Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015)

(holding that it was error to revoke probation when the basis for the violation was

not alleged in the violation of probation affidavit); Osteen v. State, 147 So. 3d 678,

679 (Fla. 1st DCA 2014) (“It is well settled that the revocation of probation based

upon a violation not alleged in the charging document is a deprivation of the right

to due process of law.”).

      Nonetheless, we affirm the revocation of probation based solely on the

aggravated battery, which is a substantial violation sufficient to support the

revocation. See Thomas, 159 So. 3d at 938 (affirming revocation on remaining

valid ground of committing new offense of aggravated battery); McDoughall v.

State, 133 So. 3d 1097, 1100 (Fla. 4th DCA 2014) (affirming revocation based on

single violation where it is clear that trial court would have revoked probation even

absent improper ground); see also E.J. v. State, 29 So. 3d 348, 351 (Fla. 3d DCA

2010).      Here, the trial court’s finding that Gray violated his probation by

committing the aggravated battery offense was supported by competent, substantial

evidence.

      We agree, however, with the State’s concession that the trial court must

resentence Gray as the record is not clear whether the trial court would have

imposed the same sentence based solely on the aggravated battery offense, the

remaining violation. See Matthews v. State, 897 So. 2d 523, 525 (Fla. 3d DCA

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2005) (holding that defendant must be resentenced because it was unclear whether

the trial court would have imposed the same sentence absent the most serious

charges for violation of probation); McDoughall, 133 So. 3d at 1100 (remanding to

resentence defendant because it was unclear whether trial court would have

imposed same sentence for single remaining new law violation); see also Mathis v.

State, 51 So. 3d 1250, 1252 (Fla. 2d DCA 2011). Accordingly, we vacate Gray’s

sentence and remand for resentencing. On remand, the trial court shall also enter a

written order revoking Gray’s probation solely for committing the aggravated

battery offense.

      Affirmed in part, reversed in part, sentence vacated, and remanded for

resentencing.




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