       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           KELVIN CRAPPS,
                              Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-980

                           [January 28, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 10-20609
CF10A.

  Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

   Kelvin Crapps appeals the trial court’s order revoking his probation
and the sentence imposed for the violation. We reverse because the
evidence supported a violation of probation (“VOP”) based only on the
new crime of resisting an officer without violence. We remand this case
to the trial court to determine whether revocation is appropriate based
upon this single violation.

   The following facts are relevant to this appeal.       Appellant was
sentenced to probation for burglary of a dwelling, possession of burglary
tools, and criminal mischief. While on probation, Appellant was arrested
and charged with several new crimes including: (1) home invasion
robbery with a firearm, (2) aggravated battery with a deadly weapon,
(3) criminal mischief resulting in property damage over $1,000, (4)
resisting an officer without violence, and (5) resisting an officer by a
disguised person. The state filed an affidavit of VOP alleging that
Appellant violated the conditions of his probation by committing these
new law violations and by associating with criminals. At the VOP
hearing, the state introduced testimony from the deputies who responded
to the crime scene and the investigating detective. The victims did not
testify.

   One of the deputies saw three suspects fleeing when he arrived at the
crime scene. He caught up to one of the suspects and took him into
custody but could not confirm whether Appellant was one of the other
two suspects that got away. When the K-9 deputy arrived at the scene,
he went directly to the victims’ residence. After confirming that a crime
occurred, the K-9 deputy set out to locate the suspects. There was
conflicting testimony as to whether there were three or four suspects but
the K-9 deputy knew that at least one was still at large. The K-9 deputy
deployed his dog to search for the missing suspect and found Appellant
hiding under a vehicle “on the back side of where the crime took place.”
The K-9 deputy announced the dog, advised that Appellant was under
arrest, and instructed Appellant to come out. Instead of complying with
the K-9 deputy’s order, Appellant retreated further underneath the
vehicle. The K-9 deputy released the dog and took Appellant into
custody. Appellant had a glove and a skully cap in his possession when
the K-9 deputy found him.

   Despite Appellant’s presence near the crime scene, there was no other
evidence that he was involved in the robbery. Appellant’s fingerprints
were not found on the gun used during the commission of the crimes nor
were they found on any of the items stolen from the victims’ residence.
There was no DNA evidence linking Appellant to the items retrieved from
the crime scene and no one identified Appellant as one of the
perpetrators on the night of the crime.

    The trial court found that Appellant willfully and substantially
violated his probation based on all of the allegations, except resisting an
officer by a disguised person.1 The court revoked Appellant’s probation
and sentenced him to fifteen years in prison for his underlying offenses.
This appeal follows.2


     1  The trial court found criminal mischief resulting in property damage
under $1,000, not over $1,000.
     2  Appellant filed a Rule 3.800(b)(2) motion to correct sentencing error,
arguing that he was entitled to retain his youthful offender status as to his
underlying charges. The state conceded that Appellant was entitled to retain
his youthful offender status and asked the court to resentence Appellant to
fifteen years in state prison as a youthful offender. The court entered an order
granting Appellant’s motion to correct sentencing error and resentenced
Appellant as a youthful offender nunc pro tunc.           On appeal, Appellant

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   The trial court has broad discretion to revoke a defendant’s probation.
Russell v. State, 982 So. 2d 642, 646 (Fla. 2008). The court “‘must
consider each violation on a case-by-case basis for a determination of
whether, under the facts and circumstances, a particular violation is
willful and substantial and is supported by the greater weight of the
evidence.’” Id. (quoting State v. Carter, 835 So. 2d 259, 261 (Fla. 2002)).
Here, Appellant argues that the trial court abused its discretion in
revoking his probation because the evidence was insufficient to implicate
him in the robbery. We agree based on our factually analogous decision
in Glover v. State, 17 So. 3d 886 (Fla. 4th DCA 2009).

    In Glover, the state charged the defendant with violating his probation
by committing burglary of a conveyance, grand theft, and resisting an
officer without violence. Id. at 887. The evidence at the VOP hearing
established that on the night of the burglary, the victim’s neighbor saw a
man on a bicycle circling outside the victim’s home while two other men
approached the victim’s car. Id. Though the neighbor saw the dome
light of the victim’s car go on, he did not see the men remove anything
from the vehicle. Id. The neighbor called the police but the men fled
before they arrived. Id. A few minutes later, police received a call that
several men were breaking into cars in the same area. Id. Police saw
four men (one on a bicycle) crossing over a concrete wall. Id. The men
fled despite police orders to stop. Id. Three of the suspects were taken
into custody one block away—one of them had the defendant’s phone in
his possession. Id. Police set up a perimeter and called in the K-9 unit
to locate the fourth suspect. Id. Police found the defendant on a nearby
rooftop, where they also recovered “a calculator, a digital camera and
case, a GPS, a garage door opener, a baggie of change, and a Blockbuster
card belonging to [a man unconnected to the crime].” Id. at 887–88. The
defendant testified that he purchased the items from one of the men the
police saw him with and that he ran onto the roof because police were
chasing him and released the dog. Id. at 888.

   The trial court revoked the defendant’s probation but we reversed
because the evidence was insufficient to establish that the defendant
“was either himself guilty of burglarizing [the victim’s] car or was guilty
under a ‘principals’ theory.” Id. In so holding, we reasoned that even
though “[i]t is tempting to speculate that the defendant was involved in
burglarizing [the victim’s] car,” no witness placed the defendant at the
crime scene and none of the items found in his possession belonged to
the victim. Id. We also held that the trial court did not err in finding

maintains that he should have been sentenced as a youthful offender.
However, this argument was rendered moot by the trial court’s actions.

                                   -3-
that the defendant committed the offense of resisting an officer without
violence. Id. In so holding, we reasoned that the detention was lawful
because the “close temporal and geographical factors present, time of
day, similar group size, and the distinguishing feature that the small
group of pedestrians included one man on a bicycle, justified the police’s
actions in attempting to briefly detain the individuals to conduct an
investigatory stop.” Id.

    The limited facts implicating the defendant of the burglary in Glover
are actually stronger than those implicating Appellant of the robbery in
this case. In Glover, police confirmed that there were four suspects
whereas, here, there was some discrepancy as to whether there were
three or four. When the deputies took two other suspects into custody,
they found nothing connecting them to Appellant whereas, in Glover, one
of the suspects had the defendant’s phone in his possession. Like
Glover, no witness placed Appellant at the crime scene and nothing
found on Appellant’s person conclusively linked him to the robbery.
While the fact that Appellant was found hiding under a vehicle in close
proximity to the crime raises some questions about what he was doing
there, these facts, standing alone, would require the same level of
speculation that we found legally insufficient to establish a violation in
Glover. Thus, the trial court erred in finding that Appellant violated his
probation by committing the new crime of home invasion robbery with a
firearm.    Because the violations of probation based on aggravated
battery, criminal mischief, and association with criminals were premised
upon Appellant’s involvement in the robbery, we conclude that the trial
court erred in finding violations on these bases as well.

    As to the remaining charge of resisting an officer without violence, we
reach a different conclusion. “The elements of resisting an officer
without violence require that (1) the officer be engaged in the lawful
execution of a legal duty and (2) the defendant’s action constitute
obstruction or resistance of that lawful duty.” J.P. v. State, 855 So. 2d
1262, 1265–66 (Fla. 4th DCA 2003) (citing H.H. v. State, 775 So. 2d 397,
398 (Fla. 4th DCA 2000)); see also § 843.02, Fla. Stat. (2012). An officer
is engaged in the lawful execution of a legal duty in detaining a person if
the officer has a reasonable suspicion that the person is involved in
criminal activity. G.T. v. State, 120 So. 3d 141, 143 (Fla. 4th DCA 2013)
(citing Davis v. State, 973 So. 2d 1277, 1279 (Fla. 2d DCA 2008)). This
means that the officer “‘must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.’” Id.
(quoting O.B. v. State, 36 So. 3d 784, 786–87 (Fla. 3d DCA 2010)).



                                   -4-
   Like the police in Glover, we hold that the K-9 deputy was engaged in
the lawful execution of a legal duty when he placed Appellant under
arrest. The K-9 deputy knew that police were still searching for one of
the robbery suspects and he deployed his K-9 to assist in their search.
When the K-9 deputy found Appellant hiding under the vehicle within
the perimeter set up by the deputies, he had a reasonable suspicion that
Appellant was involved in the robbery. Instead of heeding the K-9
deputy’s commands, Appellant retreated further under the vehicle and
did not come out until the K-9 deputy sent the dog in to retrieve him.
Because Appellant was found hiding close in time and proximity to the
scene of the crime, there was sufficient evidence to support the VOP
based on the new crime of resisting an officer without violence. See
Glover, 17 So. 3d at 888.

   A trial court may revoke a defendant’s probation based on a single
VOP. McDoughall v. State, 133 So. 3d 1097, 1100 (Fla. 4th DCA 2014)
(quoting Whitehead v. State, 22 So. 3d 846, 847–48 (Fla. 4th DCA 2009)).
However, we will affirm a revocation of probation based on both proper
and improper grounds only when it is clear from the record that the trial
court would have revoked the defendant’s probation absent the improper
grounds. Id. (quoting Lee v. State, 67 So. 3d 1199, 1201–02 (Fla. 2d DCA
2011)). When we cannot determine whether the trial court would have
revoked the defendant’s probation based solely on the proper grounds,
we must reverse and remand the matter to the trial court for
reconsideration. Id.; see also Glover, 17 So. 3d at 889 (remanding case
to the trial court because the record was not clear whether revocation
was appropriate based on the single violation for resisting an officer
without violence).

    In this case, the trial court announced that it was revoking
Appellant’s probation based on all of the allegations, except resisting an
officer by a disguised person, but it did not indicate whether any one of
the violations justified the revocation in and of itself. Thus, it is unclear
whether the trial court would have revoked Appellant’s probation based
solely on the new law violation of resisting an officer without violence.
Accordingly, we reverse and remand this case to the trial court to
determine whether revocation of probation is appropriate based on the
crime of resisting an officer without violence. See Glover, 17 So. 3d at
889. If the trial court determines that revocation is appropriate, the trial
court shall resentence Appellant.

   Affirmed in part, Reversed in part, and Remanded

TAYLOR and CONNER, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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