       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       KATHERINE JANE SOUZA,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                      Nos. 4D16-2809 & 4D16-2814

                            [October 18, 2017]

  Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Elizabeth A. Scherer, Judge; L.T. Case
Nos. 15011958CF10A and 15007947CF10A.

  Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant challenges the facial constitutionality of Section
948.06(8)(e)2., Florida Statutes (2016), as violative of Apprendi v. New
Jersey, 530 U.S. 466 (2000), to the extent that it directs a judge, rather
than a jury, to make a factual finding of dangerousness, which she
contends increases the minimum penalty for a crime. Because the right
to trial by jury is not required in a revocation proceeding, and the court’s
finding that the probationer is a danger to the community only prevents
the court from again allowing probation, we hold that the statute is not
facially unconstitutional.      Appellant also contends the trial court
committed reversible error in failing to make written findings as to how
she posed a danger to the community. The State properly concedes this
error, and for this reason, we affirm the revocation of probation but
remand for the court to make such written findings.

   Appellant was charged with robbery with a weapon and later with
possession of cocaine and other drugs. She was sentenced for both and
received a downward departure sentence of probation for three years on
all counts. As to the robbery count, she was declared a habitual felony
offender.

    Shortly after sentencing, the State charged appellant with violating her
probation by changing her address without the consent of her probation
officer. She admitted her violation. Because she qualified as a “violent
felony offender of special concern,” section 948.06(8)(e)2., Florida Statutes
(2016), required the trial court to determine whether she “pos[ed] a danger
to the community” before determining her sentence. The court held a
danger hearing and then a sentencing hearing. At sentencing, appellant
asked for reinstatement to community supervision, while the State argued
that the minimum sentence pursuant to her scoresheet was 62.7 months.
The trial court found that appellant was a danger to the community based
upon the offenses for which she was being sentenced as well as her
criminal history, which revealed an escalating pattern of behavior. The
court then revoked her probation and sentenced her to the minimum
sentence of 62.7 months in prison, concurrent for both sentences. Later,
the court reduced the sentence to 56.85 months based upon a scoresheet
error. Appellant appeals the sentence.

   Although she did not raise the issue in the trial court, on appeal
appellant argues that Section 948.06(8)(e)2. is facially unconstitutional
because in directing that the trial court make the danger finding, it is
contrary to Apprendi and its progeny, which hold that to guarantee a
defendant’s Sixth Amendment right to a jury trial, a judge can only impose
a sentence based on facts found by a jury or admitted by the defendant.
See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington,
542 U.S. 296 (2004).

    The Sixth Amendment, however, does not apply to probation revocation
proceedings. Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (noting
that a probation revocation proceeding is not a criminal proceeding, and
there is “no right to a jury trial before probation may be revoked.”); State
ex rel. Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962) (finding trial by jury
is not required generally in a probation revocation proceeding). Therefore,
Apprendi does not apply.

   A Section 948.06(8)(e)2. danger finding is not an element for sentencing
purposes. The statute provides requirements on the trial court in
determining revocation of probation:

      a. If the court has found that a violent felony offender of
      special concern poses a danger to the community, the court
      shall revoke probation and shall sentence the offender up to

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      the statutory maximum, or longer if permitted by law.

      b. If the court has found that a violent felony offender of
      special concern does not pose a danger to the community, the
      court may revoke, modify, or continue the probation or
      community control or may place the probationer into
      community control as provided in this section.

The grant of probation is “a matter of grace, not of right” and rests within
the discretion of the judge. Martin v. State, 243 So. 2d 189, 190-91 (Fla.
4th DCA 1971). The revocation of probation is not itself a sentence, but
merely the determination that the probationer has violated the terms of
probation and requires the court to determine a sentence for the original
charges. The statute simply limits the trial court’s discretion on whether
or not to again extend this act of grace for certain offenders.

    The sentence imposed in this case was the lowest permissible sentence
pursuant to the scoresheet. The “danger to the community” finding did
not increase the punishment beyond the statutory maximum. Apprendi,
530 U.S. at 490. Nor did it increase the floor of a sentencing range.
Alleyne v. United States, 133 S. Ct. 2151 (2013). It merely removed the
trial court’s discretion to grant additional “grace” to the appellant. The
statutory requirement that the judge make this finding rather than a jury
does not render it unconstitutional.

   The State concedes that the court only made oral findings that
appellant posed a danger to the community and that her probation should
be revoked. Section 948.06(8)(e)1., Florida Statutes (2016), requires
“written findings as to whether or not the violent felony offender of special
concern poses a danger to the community.” Because the record provides
the necessary information to enter such an order, we remand for entry of
a written order conforming to the court’s oral findings. Arnone v. State,
204 So. 3d 556 (Fla. 4th DCA 2016).

   Affirmed but remanded for entry of written order.

DAMOORGIAN and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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