               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

QUARTEZ M. DAVIS,                            )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D15-19
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed September 7, 2016.

Appeal from the Circuit Court for Polk
County; Roger A. Alcott, Judge.

Graylin Cory Chastang of Norgard, Norgard
& Chastang, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kiersten E. Jensen,
Assistant Attorney General, Tampa, for
Appellee.


LaROSE, Judge.


              Quartez Davis appeals the revocation of his community control and the

fifteen-year sentence imposed for his underlying convictions. We have jurisdiction. See

Fla. R. App. P. 9.140(b)(1)(D). The trial court found Mr. Davis guilty of technical

(Condition 16) and new law violations (Condition 5) of the terms of his community

control. The trial court proceeded on the Condition 5 violations despite the State's
decision to proceed only on the Condition 16 violation. Consequently, we reverse, in

part. We affirm on all other issues raised by Mr. Davis without further discussion.

              The trial court originally sentenced Mr. Davis for multiple felony offenses

as a youthful offender to four years in prison, followed by two years of community

control. Mr. Davis served his prison time and was serving his community control when

he was charged with violating Condition 16 by failing to remain in his residence and

Condition 5 by committing new law violations of armed burglary, possession of burglary

tools, and possession of a firearm. While Mr. Davis was awaiting trial on the new law

violations, the trial court held an evidentiary hearing on the alleged community control

violations.

              At the start of the hearing, defense counsel advised the trial court that

"there's an agreement between the State and I that we're going forward only on the

Condition 16 violation, not on the new charges." The State did not contest this

representation. Accordingly, the trial court acknowledged its "understanding that we're

not going to proceed on Condition 5, only on the Condition 16?"

              Mr. Davis admitted to violating Condition 16, but offered testimony in an

effort to mitigate the sentence that the trial court might impose. Apparently, Mr. Davis

was not in his approved residence because his family kicked him out. Thereafter, and

despite the prior understanding that the State would not proceed on the alleged

Condition 5 violations, the following exchange occurred:

              COURT: Ms. Hill[,] [d]o you have witnesses on these Condition 5

       violations?

              STATE: I do, Judge.



                                           -2-
             COURT: Well, why can't we proceed on these Condition 5

      violations?

             STATE: We can.

                    ....

             DEFENSE: I believe we had an agreement we were going to

      proceed only on the Condition 16 before the Court.

             STATE: Well, Judge, if Mr. Mendenhall was not prepared -

             COURT: I don't even know -

             STATE: - out of reliance on or indication that we weren't going to

      do the full [VOP] of the Condition 5 that's fine. I mean, some of the

      information regarding that Condition 5 offense I think is relevant to the

      Condition 16, as well, so -

             COURT: Oh, sure. And not only that, so that it's very clear here,

      the State didn't set this hearing. The Court set the hearing. And the Court

      entered the order that directed the parties to be here, to have their

      witnesses available. And I specifically put it in the order the parties shall

      be responsible for summoning all witnesses they wish to present. There

      isn't any agreement with the Court and no discussion with the Court not to

      have a hearing on the violations. So let us proceed . . . .

The trial court then proceeded to hear evidence on the alleged Condition 5 violations.

             Mr. Davis argues that the trial court erroneously assumed a prosecutorial

role by requiring the State to present evidence on the alleged new law violations. It

seems clear to us that the State decided to proceed only on the alleged violation of



                                           -3-
Condition 16. The new law violations were going to trial whether or not the trial court

found that Mr. Davis violated his probation.

              The record does not disclose why the State chose not to proceed on the

Condition 5 violations. We do know that when Mr. Davis later went to trial and was

convicted on the new charges of burglary and felon in possession of a firearm, the trial

court sentenced him to ten years concurrent with his fifteen-year sentence here.

However, had the trial court allowed the parties to proceed as they agreed on only the

Condition 16 technical violation, Mr. Davis' maximum sentence after revocation of

probation for the technical violation would have been a maximum of six years as a

youthful offender. See § 958.14, Fla. Stat. (2010).

              The State unreservedly agreed not to proceed on the Condition 5

violations. The State withdrew those alleged violations of community control. Thus, the

State effectively "nolle prossed" the Condition 5 violations. The trial court should not

have forced the State to proceed on those withdrawn allegations.

              The State has the exclusive and absolute discretion to determine the

charges it will prosecute. Barnett v. Antonacci, 122 So. 3d 400, 405 (Fla. 4th DCA

2013) (citing State v. Cain, 381 So. 2d 1361, 1367, 1367 n.8 (Fla. 1980)). "A judge has

no supervisory control over a prosecutor's decision not to prosecute." Barnett, 122 So.

3d at 406 (holding State has exclusive discretion to decide whether to discontinue

prosecution with a nolle prosse). Similarly, the State may withdraw an allegation of

violation of probation during a violation hearing. See, e.g., Johnson v. State, 60 So. 3d

1045, 1048 (Fla. 2011) ("At the hearing, the State withdrew the allegation that Johnson

had committed new substantive offenses . . . ."); Martin v. State, 937 So. 2d 714, 715



                                           -4-
(Fla. 1st DCA 2006) ("At the hearing on the violation of probation, the prosecutor

withdrew the allegation of violation of condition number 5 (the new law violation)."),

disapproved on other grounds in Del Valle v. State, 80 So. 3d 999 (Fla. 2011).

              In the context of a criminal jury trial, the State may announce a nolle

prosse of a charge at any time before the jury is sworn. Wilkins v. State, 90 So. 3d 305,

306 (Fla. 1st DCA 2012); State v. Aguilar, 987 So. 2d 1233, 1234-35 (Fla. 5th DCA

2008). The State does not need the trial court's permission. Wilkins, 90 So. 3d at 306;

Aguilar, 987 So. 2d at 1235. A nolle prosse is self-executing upon its announcement

and immediately terminates the proceeding. Aguilar, 987 So. 2d at 1235. Any

subsequent action is a nullity because the defendant was no longer charged with that

offense and the trial court had no authority to try the defendant on that charge. Sadler

v. State, 949 So. 2d 303, 305 (Fla. 5th DCA 2007); see Wilkins, 90 So. 3d at 306;

Aguilar, 987 So. 2d at 1235.

              We have found no on-point case in the probation context involving a

challenge to a revocation based on an allegation withdrawn by the State. Nevertheless,

numerous cases hold that it is trial court error to revoke probation for conduct not

alleged in the charging document. See, e.g., McRae v. State, 88 So. 3d 384, 385 (Fla.

2d DCA 2012); Andrews v. State, 693 So. 2d 1138, 1141 (Fla. 1st DCA 1997) ("[I]t is

improper to find a probationer has violated a condition of his probation that he has not

been charged with violating."). Even if we construed the prosecutor's action here as

trying to retract the withdrawal when she acquiesced to the trial court's decision to

proceed with a hearing on Condition 5, that action had no effect to resurrect what the

State had already terminated. Cf. Sadler, 949 So. 2d at 304-05 (holding that State's



                                           -5-
"withdrawal" of nolle prosse had no effect because nolle prosse ended the proceeding

on that charge and the subsequent conviction was a nullity).

             The trial court erred in proceeding with the Condition 5 violations. This

was fundamental error. See McRae, 88 So. 2d at 385 (holding it was fundamental error

to revoke probation on uncharged allegations); Freccacreto v. State, 291 So. 2d 630,

631 (Fla. 4th DCA 1974) (holding that trial court committed fundamental error by

convicting defendant of crime that State had nolle-prossed); Wise v. State, 833 So. 2d

882, 883 (Fla. 2d DCA 2003) (holding that it was fundamental error to convict defendant

for crime not charged and that verdict was a nullity). We do not know whether the trial

would have revoked community control based solely on a technical violation of

Condition 16. Therefore, we reverse and remand for a new hearing based upon only

the Condition 16 technical violation of community control.

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



WALLACE and MORRIS, JJ., Concur.




                                          -6-
