         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-0204
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STEVEN EARL KIMMONS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Santa Rosa County.
John L. Miller, Judge.

                          April 3, 2019


BILBREY, J.

     Steven Earl Kimmons appeals the final judgment entered
December 15, 2015, finding him in violation of probation, revoking
his probation, and sentencing him to five years’ imprisonment. He
also appeals the separate order of revocation of probation, entered
on the same date. We affirm the orders to the extent that they find
Kimmons violated his probation, and we affirm the revocation of
his probation. We remand for the trial court to strike its findings
that Kimmons committed all the violations charged in the second
amended affidavit of violation of probation and to resentence
Kimmons based on only the violations properly found by the court.

     While Kimmons was on probation for the offense of grand
theft of an automobile he allegedly violated his probation. In
paragraphs I. through V. of the second amended violation of
probation affidavit, Kimmons was alleged to have failed to report
to his probation officer, changed his residence without consent of
his probation officer, failed to comply with instructions of his
probation officer, failed to pay court costs, and used alcohol or
illegal drugs. In paragraphs VI. through X. of the second amended
violation of probation affidavit, Kimmons was alleged to have
failed to live and remain at liberty without violating any law by
committing sexual assault on a victim over twelve with special
conditions 1 and by committing four counts of sexual battery upon
a mentally defective victim. 2 See § 794.011(4) & (5), Fla. Stat.
(2014).

     Kimmons was ultimately tried by a jury on three counts of
sexual battery. See § 794.011(5)(b), Fla. Stat. (2014). These three
counts all concerned the same incidents alleged in the second
amended violation of probation affidavit. Kimmons was convicted
by the jury of one count. We affirmed his conviction and sentence
on appeal. See Kimmons v. State, 2019 WL 994537 (Fla. 1st DCA
Mar. 1, 2019). At the sentencing hearing for the new offense, the
trial court considered the violation of probation allegations and
found that Kimmons “did those things of which he was accused”
and thus violated his probation.

     The State never presented any evidence to support, and the
trial court made no findings regarding, the allegations in
paragraphs I. through V. referenced in the order of revocation of
probation. Additionally, Kimmons never admitted to violating
probation. Kimmons argues on appeal error in the revocation

    1 This should have read sexual battery rather than sexual
assault since there is no crime by that name under Florida law.
But this misnomer is not argued here, and even if had been argued,
would be immaterial in this case. See Smith v. State, 44 Fla. L.
Weekly D559, 2019 WL 942980 (Fla. 1st DCA Feb. 27, 2019).
    2  Condition 5 of the order of probation required Kimmons to
“live without violating any law.” This Condition specified that “[a]
conviction in a court of law is not necessary for such a violation of
law to constitute a violation of your probation, community control,
or any other form of court ordered supervision.”

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order finding ten violations as grounds for the revocation, when
only paragraphs VI. through X. in the second amended affidavit of
violation of probation concerned the new law violation. Kimmons
also argues that paragraphs VI. through X. referred to in the
separate order revoking probation were not the offenses upon
which the State proceeded to trial in the new criminal prosecution.

     The parties agree that the errors asserted here were
unpreserved for appellate review. Accordingly, ordinary error is
not enough, and reversal requires a showing of fundamental error.
“[R]evoking probation based partly on a purported violation that
was not proved or admitted constitutes fundamental error.” Odom
v. State, 15 So. 3d 672, 678 (Fla. 1st DCA 2009). However,
“[p]robation is properly revoked where a probationer is convicted
of a necessarily lesser-included offense of the crime identified in
the violation of probation affidavit.” McCloud v. State, 249 So. 3d
739, 741 (Fla. 1st DCA 2018).

     In this case, violations VI. through X. as alleged in the second
amended violation of probation affidavit stem from the new
criminal charges. Prior to trial of the new charges, the State
amended its Information to charge three counts of an offense which
constitutes a necessary lesser-included offense of the original
charges. See Fla. Std. Jury Instr. (Crim.) 11.3. Kimmons was
convicted of one of these necessary lesser-included counts.
Accordingly, no fundamental error is demonstrated in the final
judgment revoking Kimmons’ probation for committing a new law
violation, and the judgment is affirmed to the extent that it
revokes probation.

    However, we remand this case for correction of the separate
order of revocation of probation which specified ten grounds upon
which the revocation was based including five new law charges. 3


    3 Even though the jury returned a not guilty verdict on two of
the offenses, the trial court may have intended to find Kimmons
violated his probation by committing all three of the offenses tried
by the jury. If this was the trial court’s intention, it would have
been permissible since the burden of proof on a violation of
probation is based on the greater weight of the evidence as opposed
to proof beyond a reasonable doubt. See Stallworth v. State, 21 So.
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To the extent that order of revocation of probation lists grounds
not proved by the State, the trial court is instructed to enter a
corrected order striking the unproven violations and reflecting
only the actual grounds it found proved by the State and upon
which the revocation is based. Odom, 15 So. 3d at 678.

     The record is clear based on the court’s statement at the
sentencing hearing that the trial court would have revoked Mr.
Kimmons’ probation based solely on his conviction of the new
offense. However, it is not clear from the record whether the court
would have imposed the same five-year sentence based only upon
the new law violation. See Williams v. State, 165 So. 3d 870 (Fla.
1st DCA 2015). Accordingly, upon remand, the trial court shall
also determine whether it would have entered the same sentence
upon the violations found by the court, and if not, conduct further
proceedings accordingly.

    AFFIRMED in part, REVERSED in part, and REMANDED.

ROWE and KELSEY, 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, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Anne C. Conley, Assistant
Attorney General, Tallahassee, for Appellee.




3d 84 (Fla. 1st DCA 2009); Morris v. State, 727 So. 2d 975 (Fla. 5th
DCA 1999).

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