COBB v. STATE (2021)

Willie Frank Cobb challenges the revocation of his probation and the resulting sentence of thirty-six months in state prison. We affirm in part, reverse in part, and remand for further proceedings.

First, Cobb argues section 948.06(2)(f)1., Florida Statutes (2019), limited the trial court to modifying or continuing his probation, with a maximum possible sentence of ninety days in jail, because Cobb met three of the statutory conditions. We affirm because Cobb did not satisfy all four conditions required under the statute. See Owens v. State, 303 So. 3d 993 (Fla. 1st DCA 2020) (holding that whether section 948.06(2), Florida Statutes, applies to a defendant who committed an offense before the statute was amended, when imposing sentence for a violation of probation, a trial court is limited under subsection 948.06(2)(f)1. to modifying or continuing probation or imposing a sentence of up to ninety days in county jail only when a defendant “meet[s] all four conditions of subsection 948.06(2)(f)1.”).

Second, Cobb argues the trial court erred in sentencing him to state prison when his criminal punishment code total was less than twenty-two points and the jury did not make a finding of dangerousness under section 775.082(10), Florida Statutes. The State concedes error under Gaymon v. State, 288 So. 3d 1087 (Fla. 2020), and we agree. We reverse and remand for resentencing. On remand, if the State still seeks a finding of dangerousness under section 775.082(10), the trial court is directed to empanel a jury to make the determination of dangerousness.

Affirmed in part, Reversed in part, and Remanded for further proceedings.

Per Curiam.

Ray, C.J., and Bilbrey and Nordby, JJ., concur.