Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LEONTYNE MORRIS WALKER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2675 January 20, 2023 Appeal from the Circuit Court for Hillsborough County; Melissa Polo, Judge. Howard L. Dimmig, II, Public Defender, and Rachel Paige Roebuck, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Leontyne Walker appeals from an order revoking his probation and the resulting sentence. We affirm the revocation of Walker's probation but reverse the sentence and remand for another sentencing hearing in conformance with section 948.06(8)(e), Florida Statutes (2015), and for correction of the order of revocation of probation. In this appeal, Walker presents three allegations of trial court error. We address each of them. I. Denial of Motion to Suppress The instant appeal springs from the revocation of Walker's probation in Hillsborough County case number 14-CF-16216, in which he had entered a negotiated guilty plea to one count of armed burglary and two counts of grand theft in return for concurrent five-year prison sentences on each count followed by probation. On March 1, 2021, Walker's probation officer filed an Affidavit [of] Violation of Probation; Violent Felony Offender of Special Concern. The affidavit alleged that Walker violated condition four (possession of firearm), and condition five (new law violation, armed robbery). The same acts also resulted in two new criminal informations charging Walker with the offenses of armed robbery and aggravated battery with great bodily harm in case number 21-CF-2328, and felon in possession of a firearm in case number 21-CF-3269A. At the beginning of the revocation hearing, Walker's counsel made the following statement: [COUNSEL]: Judge, if I may? Before we start the hearing, I did neglect to mention to the Court, I filed a Motion to Suppress the out-of-court identification, case 21-CF-2328, and it would relate to 21-CF-3269A as well. The main detective who did the out-of-court identification with the victim . . . I believe [is on] military leave until October. Other than his testimony not being able to be obtained today, the rest of the witnesses who would testify to the identification issue would be testifying during the hearing today. So, I would -- I didn't know if Your Honor wanted to just consider the same testimony in deciding the Motion to Suppress the Identification, or if we should set that for a hearing on a separate date? THE COURT: You need to set it for a hearing on a separate date. I don't have a Motion to Suppress in front of me. [MS. CARUTHERS]: Yes, Judge. That's fine. 2 (Emphasis added.) Discussion On appeal, Walker argues that the trial court erred by failing to hear his motion to suppress before commencing the violation of probation (VOP) hearing. In general, the argument that a trial court errs in failing to hold a pretrial hearing on a motion to suppress identification is reversible error is correct. Florida Rule of Criminal Procedure 3.190(g)(3) requires the trial court to consider a motion to suppress evidence "[b]efore hearing evidence."1 The rule also provides that if the motion was not filed prior to trial, the trial court may "entertain the motion or an appropriate objection at the trial." Fla. R. Crim. P. 3.190(g)(4). In addition, the exclusionary rule has been held to apply in probation revocation proceedings. See State v. Scarlet, 800 So. 2d 220, 222 (Fla. 2001); Williams v. State, 791 So. 2d 37, 38 (Fla. 2d DCA 2001). In this case, however, no motion to suppress was filed in the VOP proceeding from which this appeal arises (or in case number 21-CF- 3269A). Moreover, Walker's counsel did not request a hearing on a motion to suppress in the VOP case; she only asked the court if it would like to "consider the . . . testimony" of certain witnesses who would be testifying in the VOP hearing or "set that for a hearing on a separate date." Third, the officer who conducted the out-of-court identification was not present. Finally, the motion in case number 21-CF-2328 was 1 Although rule 3.190(g) (formerly rule 3.190(h)) is entitled "Motion to Suppress Evidence in Unlawful Search," Florida courts have applied the rule to a motion to suppress a witness's or victim's out-of-court identification of a defendant. See, e.g., Carter v. State, 428 So. 2d 751, 753 (Fla. 2d DCA 1983); State v. Hernandez, 841 So. 2d 469, 471 (Fla. 3d DCA 2002); Johnson v. State, 566 So. 2d 888, 889 (Fla. 4th DCA 1990). 3 filed the day before the VOP hearing, and the trial judge had not yet received it. Thus, at the time of the VOP hearing, there was no motion to suppress before the court on any of the three related cases.2 On the merits, Walker's argument fails. The point of moving to exclude an out-of-court identification is to call into question the victim's ability to identify the defendant in the courtroom on the theory that the in-court identification would be influenced by the out-of-court identification. However, where a victim's in-court identification of an assailant is based on an independent recollection and is uninfluenced by a defective pretrial identification, we can properly assume that the in- court identification was not biased by the alleged defect in the out-of- court procedure. See United States v. Crews, 445 U.S. 463, 472 (1980) (holding that the record supported the conclusion that a witness's courtroom identification of a defendant rested on an independent recollection of her initial encounter of the assailant uninfluenced by the pretrial identification). Here, the victim testified that he knew who Walker was, had seen him several times before, and was 100% sure it was Walker who shot him. This satisfies the Crews criteria. Thus, even if the out-of-court 2 Walker does not argue that his trial counsel's failure to move to exclude evidence of a new law violation prior to the VOP hearing constituted ineffective assistance of counsel on the face of the record. However, we conclude that such a claim would have failed, whether presented in a timely filed postconviction motion or raised as fundamental error on direct appeal. See Strickland v. Washington, 466 U.S. 668, 694 (1984) ("Even if a defendant shows that particular errors of counsel were unreasonable . . . the defendant must show that they actually had an adverse effect on the defense."); Steiger v. State, 328 So. 3d 926, 932 (Fla. 2021) (holding that unpreserved claims of ineffective assistance of counsel may only be considered on direct appeal if the defendant can demonstrate fundamental error). 4 identification should have been excluded, it would not have prevented the victim from identifying Walker in court. In addition, the trial court heard the motion to suppress prior to trial in the related criminal cases and denied the motion. Thus, arguendo, even if the trial court had erred in failing to hold a pre-VOP hearing on the motion to suppress, the error was harmless. II. Sentencing Walker concedes that he was on probation for a crime that qualified him as a violent felony offender of special concern (VFOSC), and that the new law offenses he committed were also VFOSC-qualified offenses. However, he argues that he is entitled to a new sentencing hearing because the trial court failed to "make written findings as to whether or not the violent felony offender of special concern poses a danger to the community" as is required by section 948.06(8)(e)(1). The State concedes error but urges this court not to remand for resentencing, but only for entry of a conforming written order. In doing so, it directs our attention to McCray v. State, 282 So. 3d 158 (Fla. 2d DCA 2019). McCray does not support the State's recommendation. In McCray, this court observed that the VFOSC designation does not depend on whether the trial court makes the required findings pursuant to section 948.06(8)(e). Id. Indeed, all the section requires is that once a trial court finds that an offender has willfully and substantially violated a substantive provision of his probation or community control, it must make written findings as to whether the VFOSC poses a danger to the community. In other words, subparagraph (8)(e) has nothing to do with the imposition of the VFOSC designation; it only comes into play after the trial court has already determined that the offender is a VFOSC. 5 Section 948.06(8)(e)(1) requires that after a trial court has determined that a VFOSC has violated a substantive provision of his probation or community control, it must "make written findings as to whether or not the [VFOSC] poses a danger to the community." It then provides a list of factors the trial court must consider in making this determination. If the court finds that the VFSOC poses a danger to the community, it "shall sentence the offender up to the statutory maximum, or longer if permitted by law." § 948.06(8)(e)2.a. If the court finds that the VFOSC 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." § 948.06(8)(e)2.b. In a nutshell, section 948.06(8)(e) governs whether revocation is mandatory or discretionary and imposes minimum sentencing requirements if the VFSOC is found to be a danger to the community. In McCray, we held that the trial court's oral pronouncements substantially complied with the provisions of section 948.06(8)(e)1.c.3 282 So. 3d at 163. In this case, the trial court commented on the evidence, made a statement to the effect that Walker had squandered an opportunity by violating his probation, and chided Walker for failing to be a good role model to his children. Unlike in McCray, none of the trial court's statements in this case can be matched to any of the factors listed in section 948.06(8)(e)1. See Barber v. State, 207 So. 3d 379, 384 (Fla. 5th DCA 2016) ("The statute provides . . . 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." (emphasis 3 "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." 6 added)). Moreover, "there are no provisions in the statute that make an exception for cases where the prison sentence is appropriate regardless of whether the defendant is or is not a danger." Id. Accordingly, we vacate the sentencing order and remand with directions to hold another sentencing hearing at which the trial court shall make the required findings under section 948.06(8)(e). See Barber, 207 So. 3d at 385 (reversing sentencing order and remanding for a new sentencing hearing under similar facts). III. The Order of Revocation of Probation The revocation order erroneously states, "Walker admitted to be in violation of Conditions 4 and 5." However, this was a contested VOP hearing, at the conclusion of which the trial court pronounced that "the State has met [its] burden by a preponderance of the evidence that you are in willful and substantial violation of your probation." On remand, the trial court shall enter a corrected order stating the conditions of probation that the trial court found Walker to have willfully and substantially violated after the contested hearing. See Reed v. State, 127 So. 3d 817, 819-20 (Fla. 2d DCA 2013). Affirmed in part, reversed in part, and remanded. SILBERMAN and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 7