       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 13, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-1276
                   Lower Tribunal Nos. 06-14973A & 07-18812
                              ________________


                               Joseph Chaney,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Miguel M. De
La O, Judge.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.


Before SUAREZ, LAGOA and SCALES, JJ.

      SCALES, J.
      Joseph Chaney appeals his sentences in case numbers F06-14973A and F07-

18812, which were imposed after he pled guilty to violating probation in both

cases. Because Chaney reserved the right to challenge, on appeal, the trial court’s

ruling that he violated probation in case number F07-18812, for the following

reasons, we vacate Chaney’s guilty plea to violating probation in case number F07-

18812 and remand for resentencing on case number F06-14973A.

               I.    Relevant Factual and Procedural Background

      In case number F06-14973A, the State charged Chaney with one count of

second degree murder and one count of possession of a firearm by a convicted

felon, both offenses occurring on December 29, 2005.          While Chaney was

incarcerated awaiting trial in case number F06-14973A, the State charged Chaney

in case number F07-18812 with one count of aggravated battery by a prisoner, for

breaking the jaw of another inmate on June 1, 2007.

      On March 31, 2009, Chaney pled guilty in both cases. The sentencing order

in case number F06-14973A reflects that the trial court sentenced Chaney to seven

years in prison followed by five years of probation on both the second degree

murder and possession of a firearm by a convicted felon charges, to run concurrent

with each other. The trial court also entered an Order of Supervision spelling out

the conditions of Chaney’s probation in case number F06-14793A.




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      The March 31, 2009 sentencing order in case number F07-18812 reflects

that the trial court sentenced Chaney to six years in prison followed by five years

of probation, to run concurrent with Chaney’s sentence in case number F06-

14973A. While the sentencing order in case number F07-18812 references that the

terms and conditions of Chaney’s probation in case number F07-18812 are “set

forth in a separate order entered herein,” (emphasis added), the record reflects no

such separate order spelling out Chaney’s probation conditions in case number

F07-18812.

      Chaney was released from prison in July 2012; whereupon, he was placed

on probation.    On January 16, 2015, the State filed Violation of Probation

Affidavits against Chaney in case numbers F06-14973A and F07-18812, alleging

that Chaney had violated the conditions of his probation by testing positive for

marijuana in a urine sample, and by failing to pay ten dollars per month towards

the cost of his supervision.1

      1  As discussed infra, Chaney claims that he was never placed on probation
in case number F07-18812, and, even if he was placed on probation in case
number F07-18812, he was not provided an Order of Supervision memorializing
the terms of his probation in that case. Therefore, Chaney argues, the State could
not establish that Chaney’s testing positive for marijuana constituted a knowing
violation of the terms of the probation in case number F07-18812.
       It is undisputed that, if Chaney had been placed on probation in case number
F07-18812, if the conditions of that probation had been memorialized in writing
and were the same as in case number F06-14793A, and if the lower court found
both that Chaney violated his probation in case number F07-18812 and that he was
a danger to society, Chaney would receive a sentence of at least 26.91 years in
prison as a Violent Felony Offender of Special Concern (“VFOSC”). See §

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      Chaney’s probation violation hearing was delayed after it became apparent

that important pieces of the record were missing. There is no March 31, 2009

sentencing transcript in the record. Also, even though both the lower court docket

sheet and the sentencing order in case number F07-18812 state that Chaney was

put on probation in that case, there is no Order of Supervision for case number

F07-18812. There is only an Order of Supervision in the record for case number

F06-14973A, which does not cross-reference case number F07-18812.

      After attempts to locate and reconstruct the missing portions of the record

proved futile, the trial court, on April 20, 2015, held a probation violation hearing.

At this hearing, the trial court found insufficient evidence to prove that Chaney had

violated probation for failure to pay money, but did find Chaney in violation for

testing positive for marijuana as to case number F06-14973A. The court also

found that Chaney was a danger to society for purposes of the VFOSC statute. The

hearing adjourned, though, without resolving whether Chaney was in violation of

probation as to case number F07-18812.


948.06, Fla. Stat. (2015). It is also undisputed that the VFOSC statute does not
apply to a violation of probation in case number F06-14973A because the
underlying offenses occurred before the effective date of the statute. See
948.06(8)(b)(1), Fla. Stat. (2015). Consequently, if Chaney was never placed on
probation in case number F07-18812, or if the State was unable to establish that
Chaney knowingly violated the terms of his probation in case number F07-18812,
the trial court had significantly more discretion in sentencing Chaney for a
violation of probation only in case number F06-14793A.


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      The probation violation hearing reconvened on May 1, 2015. The State

offered Chaney thirteen years in prison to run concurrent in both cases, with all

credit for time served, in exchange for Chaney admitting to violating probation in

both cases. Chaney accepted the plea. Importantly, not only was Chaney’s plea

conditioned upon his ability to withdraw his plea for violating probation in case

number F07-18812 should the March 31, 2009 sentencing transcripts be located

and demonstrate that Chaney was never placed on probation in that case, but the

May 1, 2015 hearing transcript also reflects that the trial court acknowledged that

Chaney expressly reserved the right to challenge the court’s ruling that he had

violated probation in case number F07-18812 on appeal. See Fla. R. App. P.

9.140(b)(2)(A)(i) (“A defendant who pleads guilty or nolo contendere may

expressly reserve the right to appeal a prior dispositive order of the lower tribunal,

identifying with particularity the point of law being reserved.”).

      The trial court sentenced Chaney according to the plea agreement to thirteen

years on both cases to run concurrent, giving him credit for all of the time he was

in jail on both cases. This appeal ensued.

                                   II.   ANALYSIS

      Chaney argues that the trial court erred in finding that he knowingly violated

probation in case number F07-18812 because there is no record evidence that

Chaney ever received written notice of the condition of probation (i.e., not to use



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or possess any drugs or narcotics unless prescribed by a physician) Chaney was

found to have violated. We agree. In Davis v. State, 36 So. 3d 152, 154 (Fla. 3d

DCA 2010), this Court explained that oral pronouncement, alone, of a condition of

probation “generally, is not enough.” Rather, “[t]he defendant must be placed on

proper written notice of this requirement in order to satisfy due process.” Id. This

is accomplished by placing the condition of probation in the written sentencing

order or order of supervision. Id. Neither occurred here in case number F07-

18812.        As in Davis, we find that Chaney was not given proper written

notice of the conditions of his probation in case number F07-18812 so as to satisfy

due process. Therefore, irrespective of whether the March 31, 2009 sentencing

transcripts are ever located – which would only serve to establish if Chaney was

placed on probation in case number F07-18812 – we are still compelled to reverse

because there is no evidence that Chaney ever received adequate written notice of

the conditions of his probation in case number F07-18812.

      Accordingly, we vacate Chaney’s guilty plea to violating probation in case

number F07-18812 and remand for resentencing for Chaney’s violation of

probation in case number F06-14973A only.2 There is no need for a second

probation violation hearing.3

2We express no opinion as to the trial court’s resentencing of Chaney for Chaney’s
violation of probation in case number F06-14973A. At oral argument Chaney’s
counsel expressly acknowledged that counsel had advised Chaney of the range of
possible sentences that the trial court may, within its sound discretion, impose on

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      Reversed and remanded with instructions.




remand in the event Chaney’s appeal was successful.
3 We affirm Chaney’s violation of probation in case number F06-14973A without
discussion.

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