       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 29, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-1448
                         Lower Tribunal No. 06-16654
                             ________________


                                Bryan Cohen,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,
Judge.

      Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Arlisa Certain, Assistant Attorney
General, for appellee.

      Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.

      EMAS, J.
        Bryan Cohen appeals the trial’s court order revoking his probation and

imposing a sentence of twenty-five years in prison. Cohen asserts the revocation

was based in part upon conduct not alleged in the probation violation affidavit, and

that a remand for resentencing is necessary.

        In April 2007 Cohen pled guilty to burglary with a battery and sexual battery

upon a helpless victim. Cohen was sentenced to eight years’ imprisonment,

followed by two years of community control and ten years’ probation.

        Cohen was released from prison in June of 2013. In March of 2014, while

under community control supervision, Cohen was arrested and charged with the

misdemeanor crime of making an obscene or harassing phone call.                    A

misdemeanor information was filed, alleging that Cohen

        did unlawfully make a telephone call to Jimmy Edward Smith, . . . and
        during such call made [a] comment, request, suggestion, or proposal
        which was obscene, lewd, lascivious, filthy, vulgar, or indecent; and
        by such call or such language, intended to offend, annoy, abuse,
        threaten or harass any person at the called number, in violation of
        Florida Statutes 365.16(1)(a).

        Based upon this new misdemeanor arrest, an affidavit was filed alleging that

Cohen violated his community control and probation by committing a new crime.

The affidavit specifically referenced the misdemeanor case number and

incorporated the allegations of the misdemeanor information (as set forth above)

specifically charging a violation of section 365.16(1)(a).1

1   The probation violation affidavit also alleged that Cohen violated his community

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      In May 2014, the trial court conducted a probation violation hearing. As

Cohen concedes in this appeal, the evidence at the hearing supported a

determination that Cohen had violated his probation by making an obscene phone

call in violation of section 365.16(1)(a)2, rendering unnecessary a recitation of the

details of that phone call. During the hearing, however, the State also introduced

evidence that, immediately following the charged obscene phone call, Cohen made

a series of ten more calls to the same phone number (none of which were answered

by the person Cohen called).3

      At the conclusion of the hearing, the trial court made its oral findings that:

      - Cohen had violated his probation by making an obscene and harassing

      phone call in violation of section 356.16(1)(a);




control by failing to submit to electronic monitoring and failing to participate in
sex offender treatment.
2 Section 365.16(1)(a) provides:



       (1) Whoever:
       (a) Makes a telephone call to a location at which the person receiving
       the call has a reasonable expectation of privacy; during such call
       makes any comment, request, suggestion, or proposal which is
       obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call
       or such language intends to offend, annoy, abuse, threaten, or harass
       any person at the called number. . . is guilty of a misdemeanor of the
       second degree. . . .”
3 Cohen properly concedes that, although the uncharged series of repeated phone

calls could not serve as a separate basis for revoking probation, the testimony
regarding the repeated phone calls was nevertheless relevant and admissible
evidence bearing upon Cohen’s intent in making the initial obscene phone call.

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         - Cohen had also violated section 356.16(1)(c)4 by immediately thereafter

making a series of repeated (but answered) phone calls.

        - The State did not offer proof, and therefore did not establish, that Cohen

violated Condition 10 (failing to submit to electronic monitoring) or Condition 16

(failing to participate in sex offender treatment).5

        The trial court then heard from the State, Cohen, and Cohen’s counsel

regarding the appropriate sentence to be imposed.          No argument was made

addressing the series of repeated but unanswered phone calls, and only passing

reference was made addressing the single obscene phone call. Instead, the issues

pertinent to sentencing centered on the seriousness of the crimes for which Cohen

was originally sentenced (sexual battery upon a helpless victim and burglary with a

battery); his mercurial history of community control supervision; his mental health

and treatment history; and the significant number and serious nature of Cohen’s

prior felony convictions.6 The court sentenced Cohen to 25 years’ imprisonment.

4   Section 365.16(1)(c) provides:

        (1) Whoever:
        (c) Makes or causes the telephone of another repeatedly or
        continuously to ring, with intent to harass any person at the called
        number. . . is guilty of a misdemeanor of the second degree. . . .”
5 The State properly concedes that the written order of revocation incorrectly
reflects a finding that Cohen violated these two conditions of his community
control and must be corrected to conform to the court’s oral pronouncement.
6 The transcript reveals that, prior to his 2007 plea and sentence in this case, Cohen

had at least ten prior felony convictions, including prior convictions for sexual

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         The written order of revocation order lists three violations as grounds for

revocation: failing to submit to electronic monitoring; failing to participate in sex

offender treatment7; and committing the offense of Obscene Harassing Phone

Calls.

         Cohen correctly contends that, in revoking Cohen’s probation, the trial court

erroneously relied upon an uncharged violation of section 365.16(1)(c), Florida

Statutes, by having made the series of ten repeated phone calls following the single

obscene phone call. Revocation of probation based on an uncharged violation

deprives the defendant of due process and constitutes fundamental error. Bonner

v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014); McRae v. State, 88 So. 3d 384 (Fla.

2d DCA 2012); Ray v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003). When

probation has been revoked based on charged and uncharged conduct, the

revocation order must be reversed where it is unclear whether the lower court

would have revoked probation and imposed the same sentence absent the

uncharged conduct. Mack v. State, 440 So. 2d 602 (Fla. 3d DCA 1983). In the

instant case, however, it is clear from the record that the trial court would have

revoked Cohen’s probation and imposed the same sentence based solely on the


battery, attempted strong arm robbery, simple burglary, burglary with an assault or
battery, grand theft, and possession with intent to distribute marijuana. Cohen had
already served two different state prison sentences (in 1982 and 1992) prior to his
2007 plea and eight-year prison sentence in this case.
7 The State properly concedes that the order of revocation incorrectly reflects a

finding that Cohen violated these conditions of his community control.

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charged violation of making an obscene phone call under section 365.16(1)(a).

McKenzie v. State, 38 Fla. L. Weekly D2379 (Fla. 3d DCA Nov. 13, 2013); Ware

v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011); Mata v. State, 31 So. 3d 257 (Fla.

4th DCA 2010).

      We therefore affirm the trial court’s finding of a violation of probation by

committing the crime of making obscene phone calls, and we affirm the sentence

imposed. We remand this cause to the trial court for the purpose of correcting the

revocation order to conform to the court’s oral pronouncement. The corrected

revocation order shall delete the findings of a violation of Condition 10 (failing to

submit to electronic monitoring) and Condition 16 (failing to participate in sex

offender treatment). The defendant need not be present for this purpose. We

affirm the order of revocation in all other respects.

      Affirmed and remanded with directions.




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