BORRERO v. STATE (2020)

Appellant challenges the revocation of his probation and sentence imposed. He qualified as a violent felony offender of special concern pursuant to section 948.06(8)(c), Florida Statutes (2017). After appellant admitted the violations of probation of which he was charged, the court proceeded with a sentencing hearing. The purpose of the hearing was to determine whether appellant posed a danger to the community, which would require the revocation of his probation. Despite the State's request, the court failed to make any findings of dangerousness, contrary to section 948.06(8)(e)1., Florida Statutes (2017). The State concedes, and we agree, that this failure requires a reversal and remand for a new sentencing hearing. Whittaker v. State, 223 So. 3d 270, 273-74 (Fla. 4th DCA 2017); Barber v. State, 207 So. 3d 379, 384-85 (Fla. 5th DCA 2016).

Because resentencing is a de novo proceeding, see State v. Collins, 985 So. 2d 985, 989 (Fla. 2008), we need not address the remaining issues raised, including the denial of the motion for reduction and mitigation of the sentence, and the motion to appoint conflict counsel, as appellant made a claim of ineffective assistance of counsel. Appellant will be appointed counsel for the sentencing, and counsel may raise any issues that are legally permissible in resentencing, including issues of mitigation.

For purposes of resentencing, we do address and reject appellant's contention that we should recede from Souza v. State, 229 So. 3d 387 (Fla. 4th DCA 2017), holding that a judicial finding of dangerousness for purposes of section 948.06(8)(e) does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We explained our reasoning in Hollingsworth v. State, No. 4D18-3705, ––– So.3d ––––, 2020 WL 1547265 (Fla. 4th DCA April 1, 2020), which reasoning we adopt here.

Reversed and remanded for further proceedings.

Per Curiam.

Warner, Gerber and Forst, JJ., concur.