       Third District Court of Appeal
                                State of Florida

                           Opinion filed August 15, 2018.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D17-583
                          Lower Tribunal No. 13-13688
                              ________________

                               James Raimondi,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.

      Ilene F. Tuckfield, P.A., and Ilene F. Tuckfield, for appellant.

     Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney
General, for appellee.


Before LAGOA, SALTER, and SCALES, JJ.

      LAGOA, J.

      James Raimondi (“Raimondi”) appeals from the trial court’s revocation of

his community control and sentence. Because the record on appeal does not
contain the relevant affidavit upon which the revocation was based, we remand for

further proceedings.

I.    FACTUAL AND PROCEDURAL HISTORY

      On July 11, 2013, Raimondi was charged with shooting or throwing a deadly

missile and aggravated assault with a firearm. Raimondi pled guilty to the charge

of aggravated assault with a firearm, and on January 23, 2015, was sentenced to

366 days in prison followed by two years of community control and two years of

probation. Raimondi received 431 days of credit for time served.

      On January 7, 2016, an amended affidavit of violation of community control

(the “January 7, 2016, affidavit”)1 was filed alleging that Raimondi violated

multiple conditions of his community control by committing offenses on

September 18, 2015, and October 8, 2015. On September 27, 2016, the trial court

entered an order of probation (the “September 27, 2016, order of probation”),

placing Raimondi on community control for two years.            Condition five of

Raimondi’s supervision required that he live “without violating the law.”

      Less than twenty-four hours after he signed the September 27, 2016, order of

probation, Raimondi was arrested on September 28, 2016. The State argues in its

Answer Brief that as a result of Raimondi’s September 28, 2016, arrest, an

amended affidavit of violation of probation was subsequently filed, alleging two


1 No other affidavit appears in the record regarding the offenses committed on
September 18, 2015, and October 8, 2015. This Court is therefore unclear why this
affidavit is titled “amended affidavit.”
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separate violations of condition five of Raimondi’s community control—battery

and resisting arrest with violence.

      Additionally, in its Answer Brief, the State refers to and cites to the January

7, 2016, affidavit found in the record. That affidavit, however, is not the affidavit

that applies to these offenses. The record only contains the January 7, 2016,

affidavit, which pertains to offenses that occurred in September and October of

2015. Even a cursory review of the January 7, 2016, affidavit confirms that it is

not the affidavit applicable to this appeal. Indeed, as the January 7, 2016, affidavit

pre-dates the events at issue, which occurred on September 28, 2016, that affidavit

neither references the offenses relevant to this appeal nor does it otherwise include

a charge of resisting arrest.2

      The trial court held a violation of probation hearing on February 17, 2017.

The State presented evidence regarding events that occurred on September 28,

2016, in support of its argument that Raimondi violated his community control by

committing the offenses of battery and “resisting arrest with violence.”3 At the

conclusion of the hearing, the trial court stated:

2  A review of the clerk’s minutes contained in the record on appeal, however,
shows that an amended affidavit of violation of community control may in fact
exist. The clerk’s minutes for September 30, 2016, state, “aff of VOP filed,” and
for October 4, 2016, state, “See amended affidavit violation of community control
filed 10/3/16.”
3 The State argues that the amended affidavit at issue alleged Raimondi committed
the offense of resisting arrest with violence. The transcript of the violation of
probation hearing, however, indicates that Raimondi proceeded with a defense to
an allegation that he resisted arrest without violence. The record further reflects
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             You know, it pains me, but I do find that he violated
             probation. I do find that the State has proved by a
             preponderance of the evidence that he violated number
             five - - paragraph number five.

The trial court sentenced Raimondi to eighteen months in prison, to be followed by

six months of probation. The record contains no written order of revocation of

community control.

II.   ANALYSIS

      It is well-settled that “[i]t is a due process violation and fundamental error to

revoke probation for violations not alleged in the affidavit of violation of

probation.” Howard v. State, 883 So. 2d 879, 880 (Fla. 4th DCA 2004); see also

Gray v. State, 170 So. 3d 890, 892 (Fla. 3d DCA 2015) (holding that trial court

erred in revoking Gray’s probation based on offense not alleged in affidavit of

violation of probation); Thomas v. State, 159 So. 3d 937, 937 (Fla. 3d DCA 2015)

(finding that trial court erred in revoking probation for offense not alleged in

affidavit of violation of probation).

      Here, the trial court conducted a hearing concerning the events that occurred

on September 28, 2016, and orally pronounced that the State proved by a

preponderance of the evidence that Raimondi violated condition five of his

supervision. As noted above, the record on appeal, however, does not contain an

affidavit of violation of community control (or probation) setting forth the specific


that Raimondi was acquitted on a charge of resisting arrest without violence in case
number 16-28283 for an arrest that occurred on September 28, 2016.
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substantive violations Raimondi allegedly committed on September 28, 2016, in

violation of condition five of his supervision.

       As the relevant affidavit of violation is not contained in the record on appeal,

this Court cannot discern whether the trial court erred in revoking Raimondi’s

community control, as we cannot review the substantive violations alleged in the

affidavit. Because the record on appeal reveals the possibility that an affidavit of

violation of probation was filed before the February 17, 2017, hearing, however, it

is appropriate to remand the case to the trial court with instructions to locate and

consider the appropriate affidavit. See Howard, 883 So. 2d at 880 (remanding to

“the trial court with instructions to conduct further proceedings to determine the

existence of the amended affidavit” of violation of probation where the only

affidavit in the record referenced offenses other than the one that formed the basis

for the violation, and the hearing transcript revealed the possible existence of an

amended affidavit charging the substantive violation); see also Lishinsky v. State,

219 So. 3d 89, 89 (Fla. 4th DCA 2017) (reversing and remanding to the trial court

to conduct further proceedings directed at locating and considering probation

affidavit where probation affidavit was not included in record on appeal, but

hearing transcript indicated that affidavit existed).

III.   CONCLUSION

       Because the possibility exists that an affidavit of violation of community

control was, in fact, filed below that charged Raimondi with substantive violations

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committed on September 28, 2016, in violation of the conditions of his

supervision, we remand for the trial court to conduct further proceedings directed

at locating and considering the relevant affidavit. We also instruct the trial court to

enter a written order specifying the basis for its revocation of community control.

See Mitchell v. State, 238 So. 3d 386, 387 (Fla. 3d DCA 2018).4

      Remanded with directions.




4Upon the trial court’s entry of a written order revoking probation, if Raimondi
contends that any of the grounds relied on by the trial court to revoke probation are
not supported by the evidence, he may appeal at that time. See Mitchell, 238 So.
3d at 387 n.2.
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