       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        TAVARIS JAMAL EVANS,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

       Nos. 4D18-3111, 4D18-3113, 4D18-3116 and 4D18-3114

                             [July 29, 2020]

   Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case Nos.
14-001544CF10A,         14-003350CF10A,       14-003351CF10A          and
14-003352CF10A.

  Carey Stafford Haughwout, Public Defender, and Nancy Jack, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   In these consolidated appeals, Tavaris Jamal Evans (“Appellant”)
appeals his convictions and sentences. Appellant, who at the time was a
juvenile, was prosecuted as an adult, and after pleading guilty to all
charges, was granted juvenile sanctions. Thereafter, upon determining
Appellant violated conditional release from a juvenile residential
commitment, the trial court further determined the juvenile sanctions
imposed were unsuitable, revoked the sanctions, adjudicated Appellant
guilty, and resentenced him to prison. Appellant also appeals his
designation at sentencing as a violent felony offender of special concern
(“VFOSC”).

   Appellant raises four issues on appeal. We affirm without discussion
the trial court’s determination that Appellant violated conditional release
by committing a new crime. We also determine, without discussion, that
the record does not demonstrate that the trial court erred by not ordering
updated reports from the Department of Juvenile Justice (“DJJ”) or the
Department of Corrections (“DOC”). However, we agree with Appellant’s
arguments that the trial proceedings below violated due process, and the
trial court erroneously designated him as a VFOSC.            We reverse
Appellant’s convictions, sentences, and VFOSC designation, and remand
for further proceedings before a different judge.

                                Background

   Appellant was a juvenile when he was charged and prosecuted as an
adult in four different cases for crimes of (1) burglary of a dwelling and
grand theft; (2) robbery by sudden snatching; (3) robbery by sudden
snatching and burglary of a conveyance; and (4) armed burglary of a
dwelling, grand theft, and grand theft of a firearm. After pleading guilty to
the charges, the trial court granted his motion to impose juvenile
sanctions, adjudicated him delinquent, and committed him to a level 10
program (the highest and most secure residential program the DJJ
operates). After his release from the level 10 program, Appellant was
placed on conditional release supervised by the DJJ.

   While on conditional release, Appellant was authorized to move to
Georgia. Six months after being on conditional release, as allowed by
statute, the DJJ filed an affidavit in all four cases alleging that Appellant
violated conditional release and that juvenile sanctions were “unsuitable”
as evidenced by the fact that Appellant committed a new crime of “theft by
taking > 1,500.00” in Cobb County in Georgia.

   A violation hearing was conducted. In its opening statement, the State
contended that Appellant violated his conditional release when he stole a
car in Georgia. If the trial court found him in violation, the State requested
a danger hearing, which the State was prepared to do that same day, on
the basis of Appellant’s four pending cases, prior history, the report of the
presentence investigation (“PSI”), and the DJJ.

   During cross examination of the probation officer, defense counsel
asked whether this was Appellant’s first violation on conditional release.
The State objected, asserting that direct examination had only gone into
the basis of the violation and that there were more questions the State
would ask if the proceeding became a revocation hearing and danger
hearing. The trial court responded that it was doing everything at this
hearing at the same time: the violation, revocation, danger, and
sentencing. The State argued the trial court could not take evidence for


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the violation at the same time as the danger hearing, but the trial court
disagreed and the matter proceeded as such.

    The State then elicited testimony from the probation officer that, based
on the affidavit, the DJJ’s position was that Appellant was unsuitable for
juvenile sanctions. The State also elicited testimony from the probation
officer about Appellant’s supervision history, which began when Appellant
was nine years old and was referred to a diversion program for two counts
of possession of a weapon on school property. Defense counsel objected,
arguing this was a prior offense which was not scorable on a score sheet
and was inadmissible. However, the State argued, and the trial court
agreed, that for purposes of the danger hearing, the prior offense could
come in so that the court could analyze the appropriateness of juvenile
sanctions. Defense counsel maintained that the trial court could not
consider any juvenile priors more than five years old. The trial court
responded that in determining whether juvenile sanctions were suitable
for Appellant, it wanted to hear the history of his contact with juvenile
sanctions. The probation officer then continued, explaining that Appellant
was referred a second time to a diversion program three years later after
being charged with possessing, making, or attempting to make explosives.

    In lieu of the probation officer testifying further, the parties then
stipulated that Appellant’s complete history with the juvenile system was
included in one of the court files, as well as the PSI completed for the
original sentencing. The State then elicited testimony that the probation
officer believed that Appellant was a danger based on Appellant’s history
of supervision with the juvenile justice system, his allegations in the four
underlying cases, and the new crime being committed within six months
of being released from the level 10 program.

   At the conclusion of the hearing the trial court announced that it found
the State proved Appellant committed a new crime while on conditional
release, Appellant was a danger, and the juvenile sanctions previously
imposed by the trial court were unsuitable. The trial court revoked the
juvenile sanctions, denied Appellant’s request to sentence him as a
youthful offender, determined Appellant was a VFOSC, and sentenced him
to a 10-year mandatory minimum prison sentence for the armed burglary
of a dwelling charge and five years in prison for each count in the other
cases. The trial court entered a written order designating Appellant as a
VFOSC.

   Appellant gave notice of appeal.



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                             Appellate Analysis

Due Process Violation

    We first address Appellant’s argument that the trial court violated his
due process rights when it revoked juvenile sanctions for reasons not listed
in the DJJ’s affidavit of unsuitability. Specifically, Appellant contends that
where the document asserting he was unsuitable for juvenile sanctions
alleged only a new crime as grounds, the trial court improperly considered
his prior adjudications and supervision history as grounds for revoking
juvenile sanctions. Appellant asserts he was not provided notice that the
grounds for revoking juvenile sanctions would encompass anything
beyond the new crime.

   An order revoking juvenile sanctions is generally reviewed for an abuse
of discretion. Brown v. State, 260 So. 3d 1101, 1104 (Fla. 3d DCA 2018).
However, to the extent our review involves the interpretation of statutes,
our review is de novo. Robinson v. State, 205 So. 3d 584, 590 (Fla. 2016).

   Section 985.565, Florida Statutes (2018), provides the sentencing
powers of the circuit court when a juvenile has been prosecuted in adult
court and found guilty of a crime. § 985.565, Fla. Stat. (2018). The trial
court has the option of imposing juvenile sanctions as an alternative to
adult sanctions. § 985.565(1)(a), Fla. Stat. (2018).

   If juvenile sanctions are initially imposed, but it is later determined that
the sanctions are “unsuitable,” section 985.565(4)(c) states that the trial
court “may revoke the previous adjudication, impose an adjudication of
guilt, and impose any sentence which it may lawfully impose, giving credit
for all time spent by the child in the department.” § 985.565(4)(c), Fla.
Stat. (2018). Section 985.565(4)(c) also gives the grounds for determining
that juvenile sanctions are unsuitable:

      a child may be found not suitable to a commitment program,
      community control program, or treatment program . . . if the
      child commits a new violation of law while under juvenile
      sanctions, if the child commits any other violation of the
      conditions of juvenile sanctions, or if the child’s actions are
      otherwise determined by the court to demonstrate a failure of
      juvenile sanctions.

Id. The statute provides that the process for determining whether juvenile
sanctions are unsuitable begins with the DJJ sending the sentencing court
“a written report outlining the basis for its objections to the juvenile

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sanction and shall simultaneously provide a copy of the report to the state
attorney and the defense counsel.” Id. It is also the DJJ’s responsibility
to schedule a hearing within thirty days after sending the report for the
trial court to determine if juvenile sanctions are unsuitable. Id.

   The Third District has noted the lack of guidance “regarding the scope,
parameters and due process requirements of either: (i) [the] DJJ’s ‘written
report outlining the basis for its objections to the juvenile sanction,’ or (ii)
the resulting disposition hearing to determine whether juvenile sanctions
are suitable.” Brown, 260 So. 3d at 1105 (quoting § 985.565(4)(c), Fla.
Stat.).   However, because juvenile sanction revocation proceedings
pursuant to section 985.565(4)(c) contain analogous procedures to
probation revocation procedures, the Third District reasoned there is “no
sound basis for creating and developing a disparate body of due process
law for juvenile revocation proceedings. This is true especially in light of
the Florida Supreme Court’s observation that the revocation of juvenile
sanctions is an ‘identical’ situation to that of probation revocation.” Id. at
1106 (quoting Jones v. State, 336 So. 2d 1172, 1175 (Fla. 1976)).

   Brown is similar to this case in several ways. The defendant was
charged as an adult but was subjected to juvenile sanctions. Id. at 1102.
The charging document was the DJJ’s affidavit, which the Third District
reasoned was the statutorily required “written report” of the DJJ “outlining
the basis” for seeking “revocation of Brown’s juvenile sanctions – to
determine what exactly [the] DJJ alleged as the basis for seeking
revocation of Brown’s juvenile sanctions.” Id. at 1106. The only ground
asserted in the DJJ’s charging document that Brown was not suitable for
juvenile sanctions was an allegation of a new crime. Id. There were no
factual allegations that Brown violated some other condition associated
with his juvenile sanction or that the juvenile sanctions were not
“otherwise” determined to have failed. Id.

    Likewise, in the instant case, the DJJ’s affidavit asserted that Appellant
was unsuitable for juvenile sanctions because he committed a theft in
Georgia. The affidavit did not allege Appellant violated some other
condition or that the juvenile sanctions were “otherwise” determined to
have failed. Notably, however, this case differs from Brown because, there,
the evidence at the unsuitability hearing was insufficient to prove the new
law violation by a preponderance of the evidence.                Id. at 1107.
Additionally, in Brown, “the trial court focused not on the actual charges
in the DJJ affidavit, but rather, on Brown’s history of conduct while under
DJJ supervision.” Id. at 1106. In contrast, the trial court here focused on
proof of the new crime (which was legally sufficient) in addition to
Appellant’s prior adjudications and supervision.

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   We note that the Third District observed in Brown that evidence of prior
record and history of DJJ supervision would have been proper, if the DJJ
had alleged that Brown’s pattern of conduct demonstrated a failure of
juvenile sanctions. Id. The court also observed that “the trial court could
have revoked Brown’s juvenile sanctions and imposed adult sanctions if
the State proved that Brown had committed the offense in [the] DJJ’s
charging document.” Id. at 1106–07. However, the Third District reversed
because “[g]iven the one-dimensional allegation within [the] DJJ’s
charging document, due process required that the disposition hearing,
and evidence admitted at that hearing, should have been limited to
whether Brown, by a preponderance of the evidence, committed the
violation of law alleged in the charging document.” Id. at 1106.

   The State contends that we should affirm on this issue because: (1) it
was not preserved; (2) the trial court did not make comments about
Appellant’s criminal adjudications and supervision history until after it
commented that it found that there was sufficient proof Appellant
committed a new crime; and (3) there was no fundamental error or due
process violation by the trial court in considering Appellant’s prior
adjudications and supervision history when determining whether to
revoke juvenile sanctions.

   We agree the issue was not preserved; however, we recognize that
“revoking an individual’s probation for conduct not alleged in the charging
document deprives the individual of due process and constitutes
fundamental error.” Wells v. State, 60 So. 3d 551, 553 (Fla. 1st DCA 2011);
Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003) (due process was
violated by acceptance of violation of probation pleas which included a
stipulation of a new law violation that was not contained in the affidavit of
violation). Because it is clear the trial court discussed Appellant’s prior
adjudications and supervision history before announcing its
determination that juvenile sanctions were unsuitable for Appellant, we
review the matter for fundamental error as a due process violation.

   There is no dispute that Appellant was not put on notice that the trial
court would consider any ground for determining whether juvenile
sanctions were unsuitable other than the alleged new theft crime.
Although the State seemingly attempts to argue that the trial court’s
consideration of prior adjudications and supervision history was more for
purposes of sentencing because the trial court did not discuss those
factors until after it concluded the State sufficiently proved Appellant
committed a new crime while on supervision, we reject the argument
because the trial court violated due process.

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    During argument on an evidentiary objection raised by Appellant, the
State agreed with Appellant that consideration of Appellant’s prior record
was relevant to the issue of whether Appellant should be declared a
danger, and it was not relevant to whether juvenile sanctions were
unsuitable (presumably because the State recognized there was only one
ground alleged in the affidavit). The State more than once urged the trial
court to first conduct the suitability hearing and determine if a violation
occurred and if juvenile sanctions were unsuitable before considering
evidence to determine whether Appellant was a danger and other matters
appropriate for resentencing. Despite the State’s urging, the trial court
wanted to do everything at one time and insisted on multiple occasions
that counsel ask all the questions needed for both the unsuitability
determination and sentencing as each witness testified. The trial court
failed to recognize that the process under section 985.565(4)(c), similar to
probation violation hearings, is a sequential three step process, where the
trial court has to decide: (1) did Appellant willfully commit a substantive
violation of supervision conditions; (2) if so, should probation supervision
be revoked; and (3) if probation supervision is revoked, what is the
appropriate sentence.

    Because the trial court blurred the process by mixing evidence for the
different determinations, the trial court’s analysis became flawed. A review
of the transcript reveals the following sequence of oral determinations by
the trial court: (1) Appellant committed a new crime while on DJJ
supervision; (2) Appellant was a danger; and (3) juvenile sanctions were
unsuitable. While it is true, as the State argues on appeal, that the trial
court discussed the evidence establishing that Appellant committed a new
crime before discussing Appellant’s prior record, our review of the record
compels us to conclude that the trial court was equally, if not more,
concerned about Appellant’s escalating criminal record and use of
weapons during the prior offenses. Thus, it appears the trial court violated
Appellant’s due process rights and committed fundamental error in
determining that Appellant’s juvenile sanctions were unsuitable and
should be revoked. Ray, 855 So. 2d at 1261; Wells, 60 So. 3d at 553.

    We also find it significant that immediately after closing arguments, the
first statement announced by the trial court was: “Any reason I should not
impose sentencing at this time?” The State said, “No, your Honor,” but no
response was solicited from Appellant’s counsel. Instead, the trial court
immediately launched into its analysis and findings. The repeated
insistence of the trial court to mix evidence relevant to the suitability
determination with evidence relevant to the danger determination and
sentencing, coupled with the lack of compliance to assure both sides were

                                     7
ready to proceed with sentencing, demonstrates not only a lack of due
process regarding notice of issues to be tried, but also a lack of due process
regarding impartiality and an overemphasis on expediency. For that
reason, we reverse and remand for further proceedings before a different
judge.

Violent Felony Offender of Special Concern Designation

   Appellant argues that the trial court misapplied the law when it
conducted a danger hearing and designated him a VFOSC. Because our
analysis focuses on statutory interpretation, our review is de novo.
Robinson, 205 So. 3d at 590.

    Section 948.06(8)(b), Florida Statutes (2018), defines a “violent felony
offender of special concern” as including “a person who is on . . . [f]elony
probation or community control related to the commission of a qualifying
offense committed on or after the effective date of this act[.]”
§ 948.06(8)(b)1., Fla. Stat. (2018). Section 948.06(8)(e) states in part:

      (e) If the court, after conducting the hearing [regarding a
      violation of supervision conditions], determines that a violent
      felony offender of special concern has committed a violation of
      probation or community control other than a failure to pay
      costs, fines, or restitution, the court shall:

      1. Make written findings as to whether or not the violent felony
      offender of special concern poses a danger to the community.

§ 948.06(8)(e)1., Fla. Stat. (2018). The statute also lists the factors used
in determining if an offender is a danger to the community.
§ 948.06(8)(e)1.a.–e., Fla. Stat. (2018).

   There is no dispute that Appellant was being supervised by the DJJ for
a felony that was a qualifying offense as defined in section 948.06(8).
However, we agree with Appellant’s argument that section 948.06(8)
designating an offender as a VFOSC applies only to individuals who were
on adult felony probation or community control before a violation of
supervision occurred, and it does not apply to juveniles sentenced in adult
court to juvenile sanctions pursuant to section 985.565. The view of this
Court and the Fifth District that proceedings under section 985.565(4)(c)
are comparable to violation of probation proceedings after adult sanctions
are imposed at sentencing does not change the analysis. We rely on
several statutory provisions in reaching our conclusion that a VFOSC
designation does not apply to a juvenile prosecuted as an adult who

                                      8
violates supervision conditions after juvenile sanctions are imposed by the
adult court.

   The beginning point for statutory interpretation is the plain meaning of
words chosen by the Legislature in enacting a statute. Jimenez v. State,
246 So. 3d 219, 227 (Fla. 2018). As quoted above, a VFOSC is “a person
who is on . . . [f]elony probation or community control.” § 948.06(8)(b)1.,
Fla. Stat. Sections 948.01(1) and (3), Florida Statutes (2018), make clear
that “[a]ny state court having original jurisdiction of criminal actions” may
“place[] the defendant on probation or into community control for a felony,”
and it is the DOC, rather than the DJJ, that provides the supervision. §
948.01(1)(a), (3), Fla. Stat. (2018); see also § 948.10(1), Fla. Stat. (2018)
(“The Department of Corrections shall develop and administer a
community control program.”). More significantly, section 949.01, Florida
Statutes (2018), makes clear that the DOC and DJJ operate in different
realms. § 949.01, Fla. Stat. (2018) (“Nothing in chapters 947–949 shall be
construed to change or modify the law respecting parole and probation as
administered by a circuit court exercising juvenile jurisdiction.”).

   Even more significant are statutory provisions governing conditional
release. The DJJ witness in this case testified that Appellant was on
conditional release after being released from commitment to the highest
and most restrictive level of residential commitment in the juvenile system.
Section 985.46(1)(a), Florida Statutes (2018), explains that “[c]onditional
release is the care, treatment, help, supervision, and provision of
transition-to-adulthood services to juveniles released from residential
commitment programs to promote rehabilitation and prevent recidivism.” §
985.46(1)(a), Fla. Stat. (2018) (emphasis added). In contrast, section
947.1405(2), Florida Statutes (2018), provides:

      (2) Any inmate who:

      (a) Is convicted of a crime committed on or after October 1,
      1988, and before January 1, 1994, and any inmate who is
      convicted of a crime committed on or after January 1, 1994,
      which crime is or was contained in category 1, category 2,
      category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida
      Rules of Criminal Procedure (1993), and who has served at
      least one prior felony commitment at a state or federal
      correctional institution;

      ....



                                     9
      shall, upon reaching the tentative release date or provisional
      release date, whichever is earlier, as established by the
      Department of Corrections, be released under supervision
      subject to specified terms and conditions, including payment
      of the cost of supervision pursuant to s. 948.09.

§ 947.1405(2), Fla. Stat. (emphases added). Everyday language makes
clear that “inmate” refers to a person in prison. It is commonly understood
that juveniles committed to residential facilities are not “inmates.”

    The words chosen by the Legislature in the statutes discussed above
demonstrate that a VFOSC designation applies to a person on felony
probation or community control supervised by the DOC who meets certain
criteria. Our research reveals no language in Chapters 947, 948, or 985
that suggests the Legislature intended that a VFOSC designation can
apply to a juvenile prosecuted as an adult prior to the juvenile being placed
on adult probation or community control supervised by the DOC. Thus,
the trial court erred in following the State’s request to conduct a danger
hearing and impose a VFOSC designation on Appellant.

                                Conclusion

   Having determined that the trial court violated Appellant’s due process
rights when revoking the juvenile sanctions imposed by the original
sentencing and erred by designating Appellant as a VFOSC, we reverse
Appellant’s convictions and sentences and his designation as a VFOSC.
We remand the cases for further proceedings before a different judge.

   Affirmed in part, reversed in part, and remanded with instructions.

WARNER and MAY, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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