       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         KENNETH WHITTAKER,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-1036

                              [ July 5, 2017 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No.
13003526CF10A.

  Carey Haughwout, Public Defender, and Jessica De Vera, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi Bettendorf,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Kenneth Whittaker appeals the sentence imposed after the trial court
revoked his probation. We reverse and remand for the trial court to: (1)
hold a new sentencing hearing and make the necessary written findings
under section 948.06(8)(e), Florida Statutes (2015); (2) strike the $400
public defender fee without prejudice to the fee being reimposed on
remand after the proper procedure is followed; and (3) enter a written order
of revocation of probation specifying the conditions appellant was found to
have violated.

    Appellant entered a plea of no contest to the charge of aggravated
battery with a deadly weapon. He was placed on probation for a period of
five years. The state later charged appellant with six probation violations,
including a new law violation for resisting an officer without violence.

   At a “danger hearing,” appellant’s probation officer testified that he did
not think appellant was a danger to the community, but that he was not
sure. The trial court found as follows: “I do not find [appellant] to be a
danger, based upon all the testimony.” Appellant entered an open plea to
all alleged violations.

   Over defense counsel’s objection, appellant’s scoresheet included 12
points for violating probation as “a violent felony offender of special
concern.” Appellant received a bottom-of-the-guidelines sentence of 49.05
months in prison with credit for time served. The trial court also assessed
a $400 public defender fee without notice or a hearing.

   The disposition order indicated that appellant was “not a danger” and
that appellant’s probation was revoked. However, the disposition order
did not indicate that the trial court considered any of the factors set forth
in section 948.06(8)(e)1.a.–e., Florida Statutes (2015). The trial court also
did not enter a written order of revocation of probation specifying the
conditions appellant was found to have violated.

   During the pendency of this appeal, appellant filed two unsuccessful
motions to correct sentencing error under Florida Rule of Criminal
Procedure 3.800(b)(2). The motions collectively raised the same arguments
he now raises in this appeal.

    The legality of a trial court’s sentencing is reviewed de novo. Cherilus
v. State, 199 So. 3d 392, 394 (Fla. 4th DCA 2016).

    On appeal, appellant first argues that the trial court failed to comply
with the statutory procedure governing a violation of probation by a violent
felony offender of special concern (“VFOSC”), as the trial court did not
make the “danger” finding using the statutorily enumerated factors under
section 948.06(8). Appellant further argues that, because the order
designating him as a VFOSC fails to comply with statutory requirements,
this court must strike that designation. Appellant therefore maintains
that he should have received 6 points, rather than 12 points as a VFOSC,
for his violation of probation, which would reduce his lowest permissible
sentence. As a remedy, appellant argues that this court should reverse
his sentence and remand for a new sentencing hearing where he cannot
be designated as a VFOSC.

   The state agrees that appellant is entitled to a new sentencing hearing,
but otherwise disagrees with appellant’s requested relief. The state argues
that the VFOSC designation should not be removed and that the proper
remedy is to reverse the sentencing order for another sentencing hearing
with directions that the trial court make the necessary written findings
under section 948.06(8)(e)1.


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   A “violent felony offender of special concern” includes a person who is
on felony probation or community control related to the commission of a
qualifying offense committed on or after the effective date of the Act. §
948.06(8)(b)1., Fla. Stat. (2015). The term “qualifying offense” includes
aggravated battery. § 948.06(8)(c)3., Fla. Stat. (2015).

   If a person qualifies as a VFOSC and commits a violation of probation
or community control (other than a failure to pay costs, fines, or
restitution), the trial court must make written findings as to whether the
VFOSC poses a danger to the community:

      (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.
      In determining the danger to the community posed by the
      offender’s release, the court shall base its findings on one or
      more of the following:

      a. The nature and circumstances of the violation and any new
         offenses charged.

      b. The offender’s    present   conduct,    including   criminal
         convictions.

      c. The offender’s amenability to nonincarcerative sanctions
         based on his or her history and conduct during the
         probation or community control supervision from which
         the violation hearing arises and any other previous
         supervisions, including disciplinary records of previous
         incarcerations.

      d. The weight of the evidence against the offender.

      e. Any other facts the court considers relevant.

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



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      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)(e), Fla. Stat. (2015) (emphasis added).

    “[T]he written findings requirement of section 948.06(8)(e) is
mandatory, not discretionary.” Barber v. State, 207 So. 3d 379, 384 (Fla.
5th DCA 2016). “The statute provides that there are a number of factors
the trial court should consider in making the dangerousness
determination, and that decision must be based on one or more of them.”
Id.

   Nonetheless, because a defendant’s designation as a VFOSC does not
depend on a finding that the defendant poses a danger to the community,
a trial court’s failure to make written findings under section 948.06(8)(e)
as to whether a defendant poses a danger to the community does not
entitle the defendant to have the VFOSC designation stricken. In Barber,
the Fifth District conducted an exhaustive analysis of section 948.06(8)
and explained:

          For purposes of our discussion, section 948.06(8) can be
      analyzed in two parts. The first part deals with provisions that
      pertain to the requirements that must be met to qualify a
      person as a violent felony offender of special concern, which
      include provisions for pretrial detention for those who qualify.
      See § 948.06(8)(b)-(d), Fla. Stat. (2015); see also Fla. R. Crim.
      P. 3.790(b)(3)(A). The second part deals with sentencing of
      individuals who are found by the trial court to be in violation
      of a non-monetary condition and who are violent felony
      offenders of special concern found to pose a danger to the
      community. See § 948.06(8)(e), Fla. Stat. (2015); see also Fla.
      R. Crim. P. 3.790(b)(3)(B). The designation under the first part
      of the statute does not depend on findings that the individual
      poses a danger to the community. However, for sentencing
      purposes under the second part of the statute, the designation
      under the first part is a necessary ingredient. Hence, the

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      designation under the first part is applicable and has
      significance in the pretrial context before the case progresses
      to sentencing. If the defendant is found to be a danger to the
      community, that finding results in the designation under the
      second part of the statute. If not, there is nothing in the statute
      to indicate that the designation under the first part must be
      eliminated. Accordingly, we reject the notion espoused by
      Barber that noncompliance with the written findings
      necessary for sentencing purposes requires that the
      designation under the first part of the statute be stricken.

          Barber’s reliance on Bailey v. State, 136 So. 3d 617 (Fla.
      2d DCA 2013), is misplaced, so that decision is of no benefit
      to him.      In Bailey, the court was concerned with the
      sufficiency of the written findings filed by the trial court to
      support its conclusion that the defendant qualified as a
      violent felony offender of special concern who posed a danger
      to the community under section 948.06(8)(e). Id. at 620–21.
      The court noted that the defendant did not contest the fact
      that he qualified for designation under sections 948.06(b)-(d).
      Id. at 619. The court held that, because the written findings
      were insufficient for the designation under section
      948.06(8)(e), the designation must be stricken. Id. at 620–21.
      There is nothing in the opinion indicating that the court meant
      to strike the designation under sections 948.06(8)(b)-(d).

Id. at 383.

   A trial court’s finding under section 948.06(8)(e) as to whether a
defendant who qualifies as a VFOSC poses a danger to the community is
significant because it determines whether revocation of probation is
mandatory or discretionary. § 948.06(8)(e)2., Fla. Stat. (2015). However,
because a guidelines sentence “would be legal irrespective of the findings
made pursuant to section 948.06(8)(e),” a trial court’s failure to make the
mandated written findings under section 948.06(8)(e) does not necessitate
reinstatement of the defendant’s probation. See Barber, 207 So. 3d at
383–85. Rather, “the proper remedy is to reverse the sentencing order and
remand for another sentencing hearing with directions that the trial court
make the necessary written findings under section 948.06(8)(e) when
imposing its sentence.” Id. at 385.

    Here, the trial court did make a conclusory written finding that
appellant was “not a danger” to the community, but there is no indication
in the disposition order that the trial court based its finding on one or more

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of the factors set forth in section 948.06(8)(e)1.a.–e. Thus, the trial court’s
disposition order is deficient. See Bailey, 136 So. 3d at 620 (“While the
trial court did place an ‘X’ on the line indicating that it found Bailey to be
a violent felony offender of special concern who posed a danger to the
community, the court did not place an ‘X’ in any of the blanks to indicate
which specific facts listed in section 948.06(8)(e) it was relying on to find
that Bailey qualified as such.”).

    Appellant is not entitled, however, to have the VFOSC designation
stricken. Appellant indisputably qualifies as a VFOSC under section
948.06(8)(b)–(c). This designation does not depend on a finding as to
whether he poses a danger to the community. Regardless of the adequacy
of the trial court’s findings under section 948.06(8)(e), the trial court
correctly imposed 12 points on appellant’s scoresheet due to his violation
of probation as a VFOSC. See § 921.0024(b)2.a., Fla. Stat. (2015). Thus,
there is no scoresheet error concerning appellant’s designation as a
VFOSC.

   Appellant’s reliance upon Bryant v. State, 148 So. 3d 1251 (Fla. 2014),
is misplaced because the required written findings at issue in that case
were necessary to support the imposition of an upward departure
sentence. In Bryant, the Florida Supreme Court held that a sentence in
excess of a nonstate prison sanction constitutes an upward departure
sentence where a defendant scores 22 points or fewer so as to implicate
section 775.082(10), which requires the sentencing court to impose a
nonstate prison sanction unless it makes written findings that such a
sentence poses a danger to the public. Id. at 1258. The Florida Supreme
Court further held that when any upward departure sentence is vacated,
a guidelines sentence must be imposed on remand even if the trial court’s
original error was failing to articulate the reasons supporting the sentence
in a written order. 1 Id. at 1257.

   In contrast to Bryant, and contrary to appellant’s argument, a VFOSC
designation is not “effectively an upward departure.”       The VFOSC
designation is based on a defendant’s criminal history, and does not
depend on whether the trial court has made the required written findings
pursuant to section 948.06(8)(e). While the VFOSC designation results in
additional points on the defendant’s scoresheet if a defendant violates
probation, it does not result in an upward departure from the sentencing
guidelines.


1 The Bryant court recognized an exception for cases involving habitual felony
offender sentencing. Id. at 1259.

                                      6
   Moreover, even when a trial court finds under section 948.06(8)(e) that
a defendant designated as a VFOSC poses a danger to the community, this
finding has no bearing on the statutory maximum sentence, but rather is
relevant to the decision whether to revoke probation. Where a trial court
imposes a guidelines sentence on a defendant who has been designated as
a VFOSC, the sentence is “legal irrespective of the findings made” under
section 948.06(8)(e). Barber, 207 So. 3d at 384. Thus, unlike the situation
in Bryant where the required written findings were necessary to support
an upward departure, a trial court’s failure to make the required written
findings under section 948.06(8)(e) is not the type of sentencing error that
cannot be corrected on remand.

   Under the specific facts of this case—where the trial court found that
appellant was not a danger to the community and imposed a guidelines
sentence—any suggestion that an “upward departure” sentence was
imposed is without merit. Put simply, the present case does not involve
an upward departure sentence.

   Based on the foregoing, we reverse and remand “for another sentencing
hearing with directions that the trial court make the necessary written
findings under section 948.06(8)(e) when imposing its sentence.” Barber,
207 So. 3d at 385.

    Next, appellant correctly argues, and the state concedes, that we should
reverse the trial court’s imposition of a public defender fee in excess of the
$100 minimum under section 938.29(1)(a), Florida Statutes (2015), which
was done without notice and a hearing, and without factual findings
supporting the higher amount of fees. See Alexis v. State, 211 So. 3d 81,
82–83 (Fla. 4th DCA 2017). We therefore reverse and remand for the trial
court “to reduce the public defender fee to the statutorily required $100 or
to hold a hearing with proper notice to obtain evidence in support of a
public defender fee in an amount greater than the statutory minimum.”
Id. at 83.

   Finally, we remand for entry of a written order of revocation of probation
specifying the conditions appellant was found to have violated. See, e.g.,
Clark v. State, 201 So. 3d 799, 799 (Fla. 4th DCA 2016).

   Reversed and Remanded

MAY and CIKLIN, JJ., concur.

                            *         *         *


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Not final until disposition of timely filed motion for rehearing.




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