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 
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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.
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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)).
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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.