       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 24, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1787
                          Lower Tribunal No. 12-1352
                             ________________


                                Deven Brown,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Richard L.
Hersch, Judge.

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

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph and Marlon J.
Weiss, Assistant Attorneys General, for appellee.


Before SCALES, LUCK and LINDSEY, JJ.

     SCALES, J.
      Deven Brown appeals the trial court’s July 13, 2016 order revoking Brown’s

juvenile sanctions and sentencing Brown, as an adult, to a term of twenty-five

years in prison. We reverse the order and remand for new proceedings because, in

revoking Brown’s juvenile sanctions, the trial court: (i) made findings outside of

the scope of the charging document, thereby depriving Brown of a proper notice of

the basis for revoking his juvenile sanctions; and (ii) relied exclusively upon

inadmissible hearsay.

      I. Relevant Facts and Procedural History

      A. Early background

      Brown was born on September 5, 1994. His busy criminal activities began

with a trespass in 2008. By the age of fifteen he was having multiple run-ins with

the law. The record indicates that in 2009 and 2010, alone, Brown was arrested

seven times. The charges included aggravated assault with a deadly weapon,

battery, and possession of a weapon on school property and aggravated assault.

Brown’s eventual plea agreement, described below, incorporated the disposition of

two of these early charges, from cases J09-5114A and J10-1212.

      B. Plea agreement in the instant case

      Brown’s criminal activities escalated and, on December 22, 2011, the

seventeen-year-old Brown used a firearm in his attempt to kill Trey Eddie. Brown

was charged as an adult (in the instant case, F12-1352) with attempted first degree



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murder with a firearm, which is a life felony pursuant to section 775.087 of the

Florida Statutes. Despite Brown’s ineligibility to receive juvenile sanctions,1 in

August of 2012, the State and Brown entered into a plea agreement that allowed

Brown to avoid the prosecution of him as an adult. Brown pleaded guilty to

attempted first degree murder with a deadly weapon and was committed to a

Department of Juvenile Justice (“DJJ”) Maximum Risk Juvenile Correctional

facility for three years, followed by conditional release until Brown turned twenty-

two. This sentence was to run concurrently with adjudications on J09-5114A and

J10-1212.

         Citing to section 985.565(4)(c) of the Florida Statutes,2 the written plea

agreement expressly states that, if Brown proves not to be suitable for juvenile

1  Because Brown previously had been adjudicated delinquent for a felony
(aggravated assault), Brown was not eligible for juvenile proceedings.
§985.565(4)(a)3., Fla. Stat. (2016).
2   This section reads in its entirety as follows:

         Adult sanctions upon failure of juvenile sanctions. – If a child proves
         not to be suitable to a commitment program, juvenile probation
         program, or treatment program under paragraph (b), the department
         shall provide the sentencing court with a written report outlining the
         basis for its objections to the juvenile sanction and shall
         simultaneously provide a copy of the report to the state attorney and
         the defense counsel. The department shall schedule a hearing within
         30 days. Upon hearing, the court may revoke the previous
         adjudication, impose an adjudication of guilt, and impose any
         sentence which it may lawfully impose, giving credit for all time spent
         by the child in the department. The court may also classify the child as
         a youthful offender under s. 958.04, if appropriate. For purposes of

                                              3
sanctions, Brown would be subject to any adult sanction that may lawfully be

imposed for attempted first degree murder with a deadly weapon. At Brown’s plea

colloquy, the trial court admonished Brown as follows: “[I]f you violate the

program, . . . then you come back here, and if . . . I find that you willfully and

substantially violated the conditions of your commitment, then you’re looking at . .

. life in prison with a 25-year minimum mandatory.”

      C. Post-plea agreement juvenile arrests and Brown’s release from DJJ

      custody

      Shortly after entering the plea deal, Brown was charged on August 28, 2012,

with aggravated battery on a fellow inmate at a juvenile detention center (case J12-

3539B). The arrest affidavit recounts that, after a verbal altercation, Brown (and

others) “jumped” the victim who sustained facial injuries in the attack. Then, on

September 3, 2012, Brown again was charged with battery for attacking a fellow

inmate, punching the victim after another verbal altercation (case J12-3636B).

      While      these    charges     were     pending,3     Brown’s       three-year

commitment expired, and, per the plea agreement, the twenty-year-old Brown was

      this paragraph, a child may be found not suitable to a commitment
      program, community control program, or treatment program under
      paragraph (b) if the child commits a new violation of law while under
      juvenile sanctions, if the child commits any other violation of the
      conditions of juvenile sanctions, or if the child’s actions are otherwise
      determined by the court to demonstrate a failure of juvenile sanctions.

§ 985.565(4)(c), Fla. Stat. (2016).

                                         4
released from DJJ custody, but remained on conditional release under DJJ’s

supervision.

      D. The February 2015 felony arrest (F15-4110A) and the State’s request for

      disposition hearing and revocation of juvenile sanctions

      On February 25, 2015, shortly after his release from DJJ custody, but while

still on conditional release under DJJ’s supervision, Brown was charged with

another new offense: an attempted second-degree murder with a firearm

that allegedly had occurred on February 21, 2015 (case F15-4110A). Months later,

in December of 2015, the State, pursuant to section 985.565(4)(c), filed a request

in case F12-1352 (the instant case that resulted in the plea bargain) asking the trial

court to set a disposition hearing to consider revoking Brown’s juvenile sanctions.

The State’s motion relied exclusively on the February 2015 arrest as support for its

general allegation that Brown was not suitable for a DJJ program. The State’s

motion was accompanied by an affidavit from Brown’s case manager that simply

recounted facts from the arrest affidavit associated with Brown’s February 2015

arrest, and concluded with a statement that Brown “has proved himself not to be

suitable for the treatment program of DJJ.”

      Prior to the disposition hearing, the State filed a motion and accompanying

memorandum of law arguing that Brown’s juvenile sanctions should be revoked,

3The record is unclear as to why the charges in cases J12-3539B and J12-3636B
were not adjudicated sooner.

                                          5
and that, consistent with the express provisions of the plea agreement, the trial

court should sentence Brown to adult sanctions for the December 2011 crime of

attempted first-degree murder with a deadly weapon. While this March 2016 filing

extensively documented Brown’s arrest history, the State’s allegation that Brown

was not suitable for a DJJ program was again based exclusively on Brown’s

February 2015 arrest.

      E. The April 8, 2016 disposition hearing and resulting sentence4

      On April 8, 2016, the trial court conducted the disposition hearing to

determine whether Brown’s juvenile sanctions should be revoked. The parties,

though, hotly contested the precise issue the trial court would be deciding, and

thus, the evidence the trial court could consider.

      Brown argued that the scope of the hearing was limited exclusively by the

allegations of the “charging document,” that is, the DJJ case manager’s affidavit

that had been filed in conjunction with the December 2015 request for a

disposition hearing. As mentioned above, this affidavit alleged only the facts

associated with Brown’s February 2015 arrest. Brown argued that, because the

affidavit’s sole allegation was that Brown was not suitable for DJJ supervision due

to this arrest, the State, in order to prevail, must prove that Brown, in fact, had



4While Judge William Thomas accepted the August 2012 plea agreement, Judge
Richard Hersch conducted the subsequent disposition hearing.

                                          6
committed the crime for which he was arrested. Brown argued that, because the

charging affidavit was limited, Brown’s criminal history – not referenced in the

affidavit – was irrelevant.

      The State’s view of the disposition hearing was far less constrained. The

State argued (as it does on appeal) that once a trial court sets a disposition hearing

to consider revocation of juvenile sanctions, the trial court may consider any

evidence relevant to whether a juvenile is suitable for DJJ supervision, irrespective

of the allegations in the charging document.

      The trial court adopted the State’s view of the disposition hearing’s scope

and, over Brown’s objection, admitted the arrest affidavits in cases J12-3539B,

J12-3636D, and F15-4110A.5 Based on these arrest affidavits, the trial court

determined that Brown was not suitable for DJJ supervision. The trial court

revoked Brown’s juvenile sanctions and sentenced Brown to a prison term of

twenty-five years, the minimum mandatory sentence for a first degree felony with

the use of a firearm.

      Brown timely appealed the trial court’s sentence.

      II. Issue on Appeal and Standard of Review


5 The trial court also admitted into evidence, over Brown’s hearsay objection,
Brown’s “Face Sheet,” a document that provides a juvenile’s history in the legal
system. Among other things, the Face Sheet lists Brown’s transgressions dating
back to a 2008 trespassing charge and includes references to cases J12-3539B and
J12-3636D.

                                          7
      In this case of first impression, we are asked to determine whether, at a

hearing to revoke juvenile sanctions, a trial court may consider grounds for

revocation not asserted in the DJJ charging document. While generally we would

review an order revoking juvenile sanctions for an abuse of discretion, see Harris

v. State, 898 So. 2d 1126, 1127 (Fla. 3d DCA 2005), in this instance, our review is

de novo as we undertake an analysis of a question of law. Norvil v. State, 191 So.

3d 406, 408 (Fla. 2016).

      III. Analysis

      While Brown challenges his sentence on two grounds,6 we reverse on the

due process ground and find no merit in Brown’s other challenge to the order.

      A. The relevant statute – section 985.565(4)(c)

      The Florida Legislature has provided a specific statutory mechanism for an

adult sentencing court to revoke previously imposed juvenile sanctions, so that

adult sanctions may be imposed by the sentencing court. § 985.565(4)(c), Fla.

Stat. (2016).

      Pursuant to this statute, if a child “proves not to be suitable” for juvenile

sanctions previously imposed by the court (a commitment program, juvenile

probation program or treatment program supervised by DJJ), then DJJ can provide



6 Brown also asserted that, based on his interpretation of language in the plea
agreement, the State waived any minimum mandatory sentencing requirements.

                                         8
the court “with a written report outlining the basis for its objections to the juvenile

sanction” (i.e, the charging document) and schedule a disposition hearing before

the court. Id. After conducting the disposition hearing, the court, if it finds that the

child is not suitable for the previously imposed juvenile sanctions, may revoke the

previous adjudication and impose any lawful sentence. Id.

      In this statute, the Legislature specifically defines what conduct renders a

juvenile not suitable for juvenile sanctions:

      (i) when a child commits a new violation of law while under juvenile

sanction;

      (ii) when a child commits any other violation of the conditions of juvenile

sanction; or

      (iii) when the child’s actions are otherwise determined by the court to

demonstrate a failure of juvenile sanction. Id.

      B. Due process requirements for both the charging document and the

      resulting disposition hearing

      While we have some general guidance from the Florida Supreme Court

instructing that proceedings to revoke juvenile sanctions are analogous to

probation revocation proceedings, see Jones v. State, 336 So. 2d 1172, 1174-75

(Fla. 1976), there is little case law regarding the scope, parameters and due process

requirements of either:     (i) DJJ’s “written report outlining the basis for its



                                           9
objections to the juvenile sanction,” or (ii) the resulting disposition hearing to

determine whether juvenile sanctions are suitable, both of which are specifically

prescribed by the statute.7 We do have the benefit, though, of extensive case law in

the probation revocation arena, providing that when the State seeks to revoke a

defendant’s probation, due process requires that notice to the defendant provide a

proper and specific basis for the violation. Gray v. State, 170 So. 3d 890, 892 (Fla.

3d DCA 2015). Florida’s appellate courts have reversed trial court probation

revocation orders when the State’s notice of violation has failed to provide the

requisite specificity. Burton v. State, 651 So. 2d 793, 794-95 (Fla. 1st DCA 1995)

(holding that both affidavit and order of revocation fail to identify with specificity

defendant’s probation violation); see also DeJesus v. State, 848 So. 2d 1276, 1278

(Fla. 2d DCA 2003) (holding that grounds for probation revocation must be in

writing to satisfy due process).

      Similarly, Florida’s appellate courts have routinely held that a trial court

commits reversible error in a probation revocation setting when it admits evidence

7 This Court has provided guidance related to sentencing after a trial court has
revoked juvenile sanctions. Mirutil v. State, 30 So. 3d 588, 590 (Fla. 3d DCA
2010) (standing for the unremarkable proposition that, in sentencing a defendant
whose juvenile sanctions have been revoked already, the sentencing court may not
consider new crimes a defendant might have committed notwithstanding that those
new crimes might have constituted the basis for the revocation). As the State
commendably conceded at oral argument, it appears that, below, the State might
have misperceived Mirutil and its lack of applicability to the procedural posture of
the instant case.


                                         10
of crimes not charged in the violation notice. Gray, 170 So. 3d at 892 (holding

error for trial court to revoke probation upon finding that sexual battery occurred

when sexual battery not alleged in affidavit); Thomas v. State, 159 So. 3d 937,

937-38 (Fla. 3d DCA 2015) (holding error for trial court to base probation

revocation on failure to complete community service when not alleged in

affidavit).

        Because we recognize that juvenile sanction revocation proceedings

conducted under section 985.565(4)(c) set forth statutory procedures that are

analogous to probation revocation procedures under section 948.06 of the Florida

Statutes, we see no sound basis for creating and developing a disparate body of due

process law for juvenile revocation proceedings. This is true especially in light of

the Florida Supreme Court’s observation that the revocation of juvenile sanctions

is an “identical” situation to that of probation revocation. Jones, 336 So. 2d at

1175.

        C. The instant case

        Against this backdrop, we first look to the charging document in the instant

case – DJJ’s December 2015 affidavit that represents the statutorily mandated

“written report” of DJJ “outlining the basis” for revocation of Brown’s juvenile

sanctions – to determine what exactly DJJ alleged as the basis for seeking

revocation of Brown’s juvenile sanctions.



                                         11
      DJJ’s conclusion that Brown was not suitable for DJJ supervision was

supported exclusively by allegations related to Brown’s 2015 arrest. Hence, DJJ

asserted in its charging document merely that Brown had committed “a new

violation of law,” which is the first of the listed grounds for finding a juvenile not

suitable for juvenile sanctions. § 985.565(4)(c), Fla. Stat. (2016). There was no

factual allegation in the affidavit suggesting that either of the two other grounds

outlined in the statute were implicated: (i) DJJ’s affidavit does not suggest that

Brown violated some other condition associated with his juvenile sanction, and

(ii) the juvenile sanctions imposed on Brown were not “otherwise” determined to

have failed. Id.

      Notwithstanding the limited subject matter in the charging document, the

trial court, at the State’s urging, viewed the scope of the disposition hearing as

being far broader. The trial court decoupled the disposition hearing from the

charging document, considering the entire panoply of evidence probative to the

question of whether juvenile sanctions were appropriate for Brown in light of

Brown’s unprofitable experience under DJJ supervision. Thus the trial court

focused not on the actual charges in the DJJ affidavit, but rather, on Brown’s

history of conduct while under DJJ supervision. In this regard, the trial court

considered the arrest affidavits associated not only with Brown’s February 2015

arrest, but also his arrest affidavits associated with two incidents in 2012. In



                                         12
revoking Brown’s juvenile sanctions, the trial court concluded that, based on the

assertions in the arrest affidavits presented to him, Brown was not suited for

juvenile sanctions. The charging document, though, provided no notice to Brown

that the grounds for revocation were this broad, encompassing conduct beyond his

February 2015 arrest.

      Had DJJ’s charging document adequately alleged that Brown’s pattern of

conduct – evidenced by his several arrests – demonstrated a failure of juvenile

sanctions, then the evidence considered by the trial court at the disposition hearing

would have been within the scope of the charging document, thus properly

considered by the trial court and sufficient to revoke juvenile sanctions. The

conspicuous fact remains, however, that DJJ’s charging document did not provide

Brown any notice that the basis for revocation of juvenile sanctions would

encompass     more      than   his   February   2015   arrest.   Given    the   one-

dimensional allegation within DJJ’s charging document, due process required that

the disposition hearing, and evidence admitted at that hearing, should have been

limited to whether Brown, by a preponderance of the evidence, committed the

violation of law alleged in the charging document.

      Finally, there is little doubt that the trial court could have revoked Brown’s

juvenile sanctions and imposed adult sanctions if the State proved that Brown had

committed the offense in DJJ’s charging document. We note, though, that the only



                                         13
evidence adduced by the State that Brown had committed this violation was the

associated arrest affidavit. Standing alone, this hearsay evidence is not sufficient to

establish a violation of law so as to justify revocation. Lewis v. State, 995 So. 2d

1123, 1125 (Fla. 4th DCA 2008) (holding that probation revocation cannot be

based solely on hearsay evidence); Azadi v. Spears, 826 So. 2d 1020, 1020 (Fla 3d

DCA 2001) (holding that arrest affidavit, as hearsay, does not support pretrial

detention order).

      IV. Conclusion

      Because the disposition hearing, and the trial court’s resulting revocation of

Brown’s juvenile sanctions, were based on grounds not alleged in DJJ’s charging

document, we reverse the order on appeal and remand for proceedings consistent

with this opinion. On remand, DJJ, if it chooses to do so, may amend its charging

document; the resulting disposition hearing shall proceed accordingly.

      Reversed and remanded with instructions.




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