Third District Court of Appeal

State of Florida 

Opinion filed July 10, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-0666

Lower Tribunal No. F14-14568

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Johnny Simmons,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Ramiro C. 

Areces, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant 

Public Defender, for appellant.

Ashley Moody, Attorney General, and Christina L. Dominguez, 

Assistant Attorney General, for appellee.

Before EMAS, GORDO and LOBREE, JJ. 

PER CURIAM.
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Johnny Simmons was arrested and charged in 2014 with burglary with 

a battery, strongarm robbery and misdemeanor battery. In 2015, he pled 

guilty to those charges and was sentenced on the felonies to three years in 

prison followed by five years’ probation. 

In November 2017, following his release from prison, he was arrested 

again and charged with burglary with an assault/battery and strongarm 

robbery. His probation officer filed an affidavit alleging that Simmons violated 

his probation by committing these new crimes. In 2019, Simmons admitted 

to violating his probation, and he was sentenced to five years in prison 

followed by five additional years of probation. Pursuant to the standard terms 

of his probation, Simmons was prohibited from changing residences without 

notifying his probation officer and obtaining his probation officer’s consent.

In June 2021, following his release from prison, Simmons’ probation 

officer filed a new affidavit, alleging Simmons violated his probation by 

absconding from probation, failing to obtain her consent before changing his 

residence, and making his whereabouts unknown. The affidavit was later 

amended to include allegations that Simmons had (on June 28, 2021) been 

arrested for three counts of attempted first-degree murder and one count of 

possession of a firearm by a convicted felon. He was also charged with 
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violating the condition of probation that prohibits a probationer from 

possessing a firearm or ammunition. 

A probation violation hearing was held in March 2023, at which several 

witnesses testified, including Simmons’ probation officer and the codefendant charged with Simmons in the attempted first-degree murder. The 

State also called Simmons to testify at the hearing, over a blanket Fifth 

Amendment objection interposed by his attorney at the beginning of the 

examination. However, a review of the transcript reveals that Simmons was 

not questioned about the new substantive charges. Rather, he was 

questioned only about (1) his original 2014 probation case—identifying 

photographs taken of him during that 2014 arrest; and identifying his 

signature on the probation form at the time of his original plea; and (2) 

whether he absconded from his current supervision by moving from or 

changing his residence without notifying or obtaining his probation officer’s 

consent, i.e., a non-substantive violation of the conditions of his probation.

The evidence introduced at the hearing regarding Simmons’

involvement in the substantive violations (the three counts of attempted firstdegree murder and possession of a firearm by a convicted felon) came from 

the testimony of the investigating detective as well as Simmons’ codefendant

(who had already entered a negotiated plea of guilty to the charges, had 
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been sentenced, and was testifying at Simmons’ violation hearing as a part 

of her plea agreement). In addition, a video was played during the hearing, 

depicting Simmons getting into an altercation with one or more persons at 

an apartment complex, leaving and returning to that complex several 

minutes later with a firearm. In this video, Simmons climbs the stairs to the 

second floor, tries to open the front door of an apartment, discharges the 

firearm at the door, then breaks a front window of the apartment and fires 

several shots through the window and into the apartment. 

Following the hearing, the trial court found the State had proven 

Simmons violated his probation by absconding from his probation and by 

committing the new offenses of attempted first-degree murder (three counts)

and possession of a firearm by a convicted felon and by violating a condition 

of probation prohibiting possessing a firearm or ammunition. The trial court 

revoked Simmons’ probation and sentenced him—on the original 2014 

offenses—to life in prison for the crime of burglary with a battery, and a 

concurrent term of thirty years in prison (as a habitual felony offender) for the 

crime of strongarm robbery. This appeal followed. 

Simmons raises two issues on appeal: (1) the trial court reversibly 

erred by “forcing” Simmons to testify against himself at the probation violation 

hearing; and (2) the written order does not conform to the oral 
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pronouncement of the court at the hearing: the court found him not guilty of 

the violation of failure to pay restitution at the hearing but included it as a 

violation on the written revocation order.

As to the first claim, we find no error. Contrasting some of the 

differences between the rights afforded an accused and those afforded a 

probationer in Clarington v. State, 314 So. 3d 495, 502 (Fla. 3d DCA 2020),

we noted some important distinctions between a probationer and one 

accused (but not yet found guilty) of a crime:

By the time a probationer is charged with a violation of probation, 

his criminal case has already been adjudicated and, whether by 

plea or trial, a finding of guilt has already been made and a 

probationary sentence has already been imposed. Further, while 

a probation violation can result from the commission of a new 

criminal offense, such is not required for the commencement of 

a probation violation proceeding. A probationer can be found to 

have violated his probation by failing to comply with mandatory 

conditions that do not rise to the level of a criminal offense. 

Indeed, when a defendant is found in violation of his probation, 

and his probation is revoked, he is thereafter sentenced for the 

original offense: an offense for which he was already found guilty 

and for which he was already provided the full panoply of due 

process rights attendant to that earlier criminal prosecution.

(Alteration in original).

Consistent with these distinctions, we held that a probationer “may 

assert only a qualified privilege against compulsory self[-]incrimination at the 

probation violation hearing.” Id. at 503 (citing Watson v. State, 388 So. 2d 15 

(Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth 
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Amendment privilege to refuse to answer questions at a probation violation 

hearing regarding non-criminal conduct alleged to constitute the violation of 

probation, and the trial court may infer a probationer's silence, or refusal to 

answer questions, as evidence of noncompliance with the terms of his 

probation)); see also State v. Heath, 343 So. 2d 13 (Fla. 1977). 

While the privilege against self-incrimination protects an accused from 

being compelled to give testimony, a “probationer may not refuse to answer 

a question, just because the answer would disclose a probation violation. His 

or her agreement to accept the terms of probation effectively waives a Fifth 

Amendment privilege with regard to this information. That privilege is 

applicable to conduct and circumstances concerning a separate criminal 

offense.” Perry v. State, 778 So. 2d 1072, 1073 (Fla. 5th DCA 2001); see 

also E.P. v. State, 901 So. 2d 193 (Fla. 4th DCA 2005). We find no violation 

of these principles during the course of the probation violation hearing. In

addition, the transcript reveals the State agreed it would not use Simmons’

testimony in its prosecution of the new crimes against Simmons. 

Simmons’ second claim is that the trial court’s written order (finding 

Simmons violated his probation by failing to pay restitution) does not conform 

to the court’s oral pronouncement (finding no violation proven on this 

allegation). While the State concedes the point (and our review of the record 
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confirms it) we have recently held that where a defendant fails to 

contemporaneously object to the written revocation order or fails to file a 

motion to correct sentence pursuant to Florida Rule of Criminal Procedure 

3.800(b), the order will not be reversed on appeal (absent fundamental error)

but is subject to an appropriately filed postconviction motion. Frazier v. 

State, 49 Fla. L. Weekly D359 (Fla. 3d DCA Feb. 14, 2024); see also Thomas 

v. State, 763 So. 2d 316 (Fla. 2000). 

We affirm the order revoking probation in all respects, but as to that 

portion of the order finding Simmons violated his probation by failing to pay 

restitution, we affirm without prejudice to the filing of an appropriate 

postconviction motion.