          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                          JONATHAN GOMEZ,
                              Appellee.

                              No. 4D13-3160

                              [July 15, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Rothschild, Judge; L.T. Case No. 10-
9071CF10A.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellant.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellee.

MAY, J.

    The State appeals an order reinstating the defendant’s probation after
he admitted a violation of probation. It argues the trial court erred in
failing to hold a danger hearing and in failing to make the required written
findings under section 948.06(8), Florida Statutes (2013). We agree and
reverse.

   In 2010, the defendant pled open to one count of throwing a deadly
missile into a vehicle and a second count of criminal mischief. The court
adjudicated the defendant guilty and placed him on probation for five years
on count I and gave him time served on count II.

   In 2013, the State filed a violation of probation, alleging the defendant
violated probation by driving while license suspended three times, having
an expired driver’s license for more than six months, possession of
cannabis, and for having submitted an untruthful report. The defendant
admitted the violations.
   The State argued that the trial court was required to conduct a danger
hearing because the defendant was a Violent Felony Offender of Special
Concern (“VFOSC”) based on a prior robbery conviction. § 948.06(8), Fla.
Stat. (2013). The State further argued that section 948.06(8)(e) required
the court to make written findings. The trial court found that section
948.06(8) did not require a danger hearing or written findings when a
probationer admits a violation of probation.

      [T]he Court is going to enter a finding that 948.06 subsection
      (8) does not require the Court to have a separate formal danger
      hearing upon accepting of either a negotiated or open
      admission to a violation of probation from someone who’s
      subject to the provisions of the Anti-Murder Act.

   The State reminded the court that the sentence would be illegal without
the danger hearing and written findings. The court nevertheless dismissed
the warrant, reinstated the defendant’s probation, and modified it to
include a mental health evaluation and follow-up treatment. From this
order, the State now appeals.

   We have de novo review of issues involving statutory interpretation.
E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009).

   The State maintains that section 948.06(8) requires a danger hearing
and written findings as to whether the defendant poses a danger to the
community. The defendant responds that the court correctly found a
danger hearing unnecessary because the State failed to prove he qualified
as a VFOSC. Alternatively, the defendant argues that section 948.06(8)
does not require a danger hearing unless he unsuccessfully seeks
dismissal of the violation. We agree with the State.

    The legislature enacted the Anti-Murder Act in 2007, amending section
948.06, Florida Statutes, to add subsection (8), and requiring an
amendment to the Florida Rules of Criminal Procedure. In re Amendments
to Fla. Rules of Criminal Procedure 3.790, 959 So. 2d 1187, 1188–91 (Fla.
2007). The Anti-Murder Act “concerns the release of violent felony
offenders of special concern and certain other offenders who are arrested
for committing a material violation of probation or community control.” Id.
at 1188.

   Under the Act, “[s]ection 948.06(8) imposes additional requirements on
the trial court when a probationer before it on revocation proceedings is a
[VFOSC].” Bailey v. State, 136 So. 3d 617, 618 (Fla. 2d DCA 2013); see §
948.06(8)(a), Fla. Stat. (2013). VFOSC “means a person who is on:”

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      1. Felony probation or community control related to the
      commission of a qualifying offense committed on or after the
      effective date of this act;

      2. Felony probation or community control for any offense
      committed on or after the effective date of this act, and has
      previously been convicted of a qualifying offense;
      ....

§ 948.06(8)(b)1.–2., Fla. Stat. Subsection (c) lists nineteen “qualifying
offenses,” including “[r]obbery or attempted robbery under s. 812.13.” Id.
§ 948.06(8)(c)6.

   Here, the defendant’s scoresheet listed a prior conviction for robbery,
an enumerated qualifying offense under 948.06(8)(c)6. The defendant was
on probation for throwing a deadly missile into a vehicle, which is a second
degree felony. § 790.19, Fla. Stat. (2010). Therefore, the defendant
qualified as a VFOSC under section 948.06(8)(b)2.

   The defendant argues, however, that the State failed to prove that he
was a VFOSC. He suggests there is no evidence he was previously
convicted of robbery and the scoresheet is inadequate proof under
Alcantara v. State, 39 So. 3d 535 (Fla. 5th DCA 2010). We disagree.

    In Alcantara, the Fifth District reversed an enhanced sentence holding
that when a defendant disputes a qualifying offense, the state must
provide “corroborating evidence of the offense or not consider the offense.”
Id. at 537. Alcantara had disputed the prior conviction and the state failed
to meet its burden of proving an enumerated qualifying offense. Id.

    Here, however, the defendant did not dispute his status as a VFOSC.
In fact, defense counsel referred to his client as a VFOSC: “The State will
have more points to score on the scoresheet because [he is] VFO qualified.”
Thus, Alcantara does not support the defendant’s argument. Because the
defendant was undisputedly a VFOSC, the trial court was required to
adhere to the requirements of section 948.06(8).

   The defendant next argues a danger hearing was unnecessary because
he admitted to his probation violations. The State responds that the
statute requires a danger hearing for all VFOSCs regardless of whether
they admit the violation. Once again, we agree with the State.

      (8)(a) [T]his   subsection   provides   further   requirements

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      regarding a probationer or offender in community control who
      is a violent felony offender of special concern. . . .
      ....

      (d) In the case of an alleged violation of probation or
      community control . . . :
      ....

      The court shall not dismiss the probation or community control
      violation warrant pending against an offender enumerated in
      this paragraph without holding a recorded violation-of-
      probation hearing at which both the state and the offender are
      represented.

      (e) If the court, after conducting the hearing required by
      paragraph (d), 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.
      ....

      2. Decide whether to revoke the probation or community
      control.

      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
      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.

§ 948.06(8)(a), (d)–(e), Fla. Stat. (emphasis added).

   “When a statute is clear, we do not look behind the statute’s plain
language for legislative intent or resort to rules of statutory construction
to ascertain intent.” Marrero v. State, 71 So. 3d 881, 886 (Fla. 2011). The
Anti-Murder Act amended the general probation violation process.

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Subsection (8)(d) now prohibits a court from dismissing a probation
violation warrant if the probationer is a VFOSC “without holding a
recorded violation-of-probation hearing at which both the state and the
offender are represented.” § 948.06(8)(d), Fla. Stat. It requires the court
to conduct a danger hearing and make written findings before determining
the appropriate disposition. The statute does not differentiate between a
probationer who admits a violation and one who requires a hearing.

    “The Anti-Murder Act was specifically passed to prevent just the kind
of thing that occurred below. It was designed to obviate the thought-to-be
undesirable spectacle of a person on probation for a designated serious
crime violating that trust only to be restored to the same or equivalent
status.” State v. Martinez, 103 So. 3d 1013, 1016 (Fla. 3d DCA 2012).

   The court did not hold the required danger hearing and also failed to
make the required written findings under section 948.06(8). We therefore
reverse and remand the case for a danger hearing and for the court to
make the requisite written findings. The court may then impose any legal
sentence.

   Reversed and remanded.

TAYLOR and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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