          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2771
                  _____________________________

CHRISTOPHER RAY SMITH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.

                        February 27, 2019


B.L. THOMAS, C.J.

     Appellant challenges his probation revocation, arguing that
that the violation affidavit was insufficient, and that he was denied
an opportunity to be heard before his sentence was imposed. We
affirm the trial court’s decision to revoke Appellant’s probation,
but we vacate the sentence imposed at the violation of probation
hearing and remand for resentencing by a new judge.

                            Background

     In 2013, Appellant was charged by information with
aggravated child abuse. Pursuant to a plea agreement, Appellant
was sentenced to 36 months of probation. In 2016, the State
alleged that Appellant had violated Condition Five of his probation
by committing two counts of “Sexual Assault.” The accompanying
violation report listed the underlying offenses as “Eighteen (18)
YOA or Older Sexual Battery on a Victim Under Twelve (12) YOA.”
The violation report alleged that Appellant placed his fingers
inside of the child victim, who was five to six years old at the time
of the alleged incidents. The violation report alleged that the
victim was hurt and yelled for Appellant to stop.

      At the jury trial for Appellant’s sexual battery offenses, the
victim’s mother and grandmother testified that Appellant, who
was married to but separated from the child’s mother, had raised
the child victim since her birth. They testified that one night, the
victim told them that her “daddy” had been touching her when she
would go stay with him. The victim’s grandmother testified that
the victim told her that the touching hurt, and that she would yell
for it to stop. The child’s mother admitted that the doctors found
no evidence of physical injury when they immediately took her for
a medical examination. The State played a recording of the victim
being interviewed by a case coordinator from the Department of
Health. On the tape, the child victim described Appellant pulling
down her underwear at night and putting his hands on the outside
and inside of her skin. The child victim took the stand and testified
that Appellant had repeatedly touched her private parts with his
tongue and his finger; she testified that his finger went “almost
inside.”

     After the close of the evidence at trial, while the jury was
deliberating, the trial court conducted an evidentiary hearing on
the charged probation violation. After closing argument and jury
instructions, the trial court asked the State if any other evidence
would be presented on the probation violation, and the State
replied, “Nothing extra, Judge.” The trial court then revoked
Appellant’s probation and sentenced him to five years in prison.
The trial court told Appellant: “And I did not give your attorney
any chance for input because of the nature of the charge, it’s very
serious. So I’m just giving you the maximum which is five years.”
Defense counsel raised no contemporaneous objections at the
probation-violation hearing.

     After an initial deadlock, the jury found Appellant not guilty
of the charged sexual batteries. The jury attached a note stating


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that it was the consensus of the jury that Appellant had done some
illegal act, but that the evidence did not prove the specific act.

     After the jury trial, the trial court entered a second amended
order of revocation of probation, stating that it found Appellant
guilty of violating Condition Five of his probation, based on the
charges alleged in the amended affidavit. 1

   Sufficiency of the Amended Violation of Probation Affidavit

     “A trial court fundamentally errs by revoking probation on
grounds not alleged in the violation of probation affidavit.”
McCloud v. State, 249 So. 3d 739, 741 (Fla. 1st DCA 2018).
However, a revocation of probation hearing “is not required to
assume the full proportions of a criminal trial. The authorities are
in accord on the proposition that the revocation hearing may be
informal.” State ex rel. Roberts v. Cochran, 140 So. 2d 597, 599
(Fla. 1962). Likewise, “formal conviction of a crime is not essential
to enable the judge to revoke the order of probation.” Id. (noting
that a judge conducting such a hearing is only required “to
determine whether in his own mind a law had been violated”).

     In Hines v. State, 358 So. 2d 183, 184 (Fla. 1978), a probation-
violation affidavit alleged that the probationer violated the
conditions of his probation when he was “arrested by Sarasota
Deputy B. Blosser for burglary[.]” The affidavit provided no
further details of the offense. Id. The supreme court held that “an
affidavit upon which a permanent revocation of probation is to be
based must allege the basic facts concerning the alleged violation,
such as its nature, time, and place of occurrence.” Id. at 185.
However, although “the written factual allegations in the affidavit
for violation of probation were insufficient to provide notice to the
probationer with what criminal act he was charged[,]” the supreme


    1  The first amended revocation order declared that Appellant
had violated more than one condition of his probation. The second
amended order stated that Appellant was found guilty only of
violating Condition Five, for committing the crimes described in
the amended affidavit; he was exonerated as to the other alleged
probation violations.

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court held that this error was harmless, for the record showed that
the probationer clearly had notice of the charges against him. Id.

     Here, the amended affidavit, which the trial court relied upon
as the basis for revoking Appellant’s probation, stated that
Appellant twice violated Condition Five of his probation “by being
arrested for . . . Sexual Assault . . . .” Appellant argues that
because there is no such crime of “sexual assault” defined in the
Florida Statutes, the trial court fundamentally erred by revoking
probation based on non-existent crimes.

     Appellant is correct that there is no crime of sexual assault
defined in the Florida Statutes. Although the amended affidavit
stated the basic nature of the offenses (sexual assaults), the time
(“between the dates of April 20, 2015 and April 24, 2016”), and the
place (“Escambia County, Florida”), the affidavit itself did not
allege any details of the sexual batteries, nor did it state which
statutory provisions were allegedly violated.

     However, despite any purported deficiencies of the amended
affidavit, Appellant, like the probationer in Hines, was clearly on
notice of the crimes for which he was arrested and charged. The
violation report that accompanied the amended affidavit referred
to the underlying offenses as “Two (2) counts of Sexual Assault by
an Eighteen (18) YOA or Older Sexual Battery on a Victim Under
Twelve (12) YOA.”’ The report described the acts in detail and
stated the dates of the offenses and arrest.

     Moreover, before opening statements at Appellant’s sexual
battery trial (which concluded with Appellant’s violation of
probation hearing), the trial court stated that “[t]he defendant is
charged with two counts of sexual battery, victim less than 12
years and defendant over 18 years.” The trial court repeated this
description of the charged offenses at the beginning of jury
instructions. At the same trial, the parties argued at sidebar about
how to conduct the violation of probation hearing; defense counsel
argued for the hearing to be held after the verdict on Appellant’s
sexual battery charges. Defense counsel never asserted during the
trial or at the violation of probation hearing that Appellant had
insufficient notice of what crimes constituted the alleged
violations, and never moved for a more definite statement of
particulars. See Fla. R. Crim. P. 3.140(n).
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     Because the sexual battery charges were described on the
violation report and at trial, the record shows that Appellant was
on notice of the charged offenses underlying his probation violation
charges. Accordingly, Appellant’s due process rights were not
violated.

 The Trial Court’s Refusal to Allow Defense Counsel to Be Heard
                  Before Imposing the Sentence

    A trial court’s refusal to hear evidence and argument
regarding a sentence constitutes a denial of due process and is
fundamental error. Davenport v. State, 787 So. 2d 32, 32 (Fla. 2d
DCA 2001); Ventura v. State, 741 So. 2d 1187, 1189 (Fla. 3d DCA
1999); see also Colette v. State, 881 So. 2d 41, 42 (Fla. 1st DCA
2004) (“Because the trial court refused to ‘entertain submissions
and evidence by the parties that are relevant to the sentence’ . . . ,
we reverse and remand for further proceedings.”) (quoting
Petrucelli v. State, 855 So. 2d 150, 154 (Fla. 2d DCA 2003)).

     The State concedes that Appellant was denied an opportunity
to be heard prior to imposition of his sentence, and that Appellant’s
sentence must be vacated and this case remanded for
resentencing. The State argues only that the same trial judge
should be permitted to conduct the sentencing hearing on remand.
However, the cases upon which the State relies did not involve a
stated intention to deny the defense an opportunity to be heard.
See Collette, 881 So. 2d at 42; Davenport, 787 So. 2d at 32. By
telling Appellant that defense counsel was intentionally denied
any input and that the sentence was determined solely on the
nature of the charged offense, the trial court indicated a
determination to impose the maximum sentence before hearing
arguments. See Thompson v. State, 990 So. 2d 482, 490 (Fla. 2008)
(“judicial comments revealing a determination to rule a particular
way prior to hearing any evidence or argument have been found to
be sufficient grounds for disqualification.”). Because the trial court
clearly stated its determination to impose the given sentence in the
absence of argument, we vacate Appellant’s sentence based on the
violation of probation, and remand for resentencing before a
different judge. The successor sentencing judge may rely on the
record of Appellant’s criminal trial. See Davis v. State, 227 So. 3d
137, 140 (Fla. 4th DCA 2017) (reversing and remanding where the

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successor judge “intentionally decided it was not going to evaluate
the same evidence submitted at trial and the initial sentencing
hearing, together with the new evidence”).

     AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.

BILBREY and JAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, Kathryn Lane, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, Robert Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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