DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TAVARIS JAMAL EVANS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Nos. 4D18-3111, 4D18-3113, 4D18-3116 and 4D18-3114

[July 29, 2020]

Consolidated appeals from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case Nos. 

14-001544CF10A, 14-003350CF10A, 14-003351CF10A and 

14-003352CF10A.

Carey Stafford Haughwout, Public Defender, and Nancy Jack, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez, 

Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

In these consolidated appeals, Tavaris Jamal Evans (“Appellant”) 

appeals his convictions and sentences. Appellant, who at the time was a 

juvenile, was prosecuted as an adult, and after pleading guilty to all 

charges, was granted juvenile sanctions. Thereafter, upon determining 

Appellant violated conditional release from a juvenile residential 

commitment, the trial court further determined the juvenile sanctions 

imposed were unsuitable, revoked the sanctions, adjudicated Appellant 

guilty, and resentenced him to prison. Appellant also appeals his 

designation at sentencing as a violent felony offender of special concern 

(“VFOSC”).

Appellant raises four issues on appeal. We affirm without discussion 

the trial court’s determination that Appellant violated conditional release 

by committing a new crime. We also determine, without discussion, that 
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the record does not demonstrate that the trial court erred by not ordering 

updated reports from the Department of Juvenile Justice (“DJJ”) or the 

Department of Corrections (“DOC”). However, we agree with Appellant’s 

arguments that the trial proceedings below violated due process, and the 

trial court erroneously designated him as a VFOSC. We reverse 

Appellant’s convictions, sentences, and VFOSC designation, and remand

for further proceedings before a different judge.

Background

Appellant was a juvenile when he was charged and prosecuted as an 

adult in four different cases for crimes of (1) burglary of a dwelling and 

grand theft; (2) robbery by sudden snatching; (3) robbery by sudden 

snatching and burglary of a conveyance; and (4) armed burglary of a 

dwelling, grand theft, and grand theft of a firearm. After pleading guilty to 

the charges, the trial court granted his motion to impose juvenile 

sanctions, adjudicated him delinquent, and committed him to a level 10 

program (the highest and most secure residential program the DJJ 

operates). After his release from the level 10 program, Appellant was 

placed on conditional release supervised by the DJJ.

While on conditional release, Appellant was authorized to move to 

Georgia. Six months after being on conditional release, as allowed by 

statute, the DJJ filed an affidavit in all four cases alleging that Appellant 

violated conditional release and that juvenile sanctions were “unsuitable” 

as evidenced by the fact that Appellant committed a new crime of “theft by 

taking > 1,500.00” in Cobb County in Georgia.

A violation hearing was conducted. In its opening statement, the State 

contended that Appellant violated his conditional release when he stole a 

car in Georgia. If the trial court found him in violation, the State requested 

a danger hearing, which the State was prepared to do that same day, on 

the basis of Appellant’s four pending cases, prior history, the report of the 

presentence investigation (“PSI”), and the DJJ.

During cross examination of the probation officer, defense counsel 

asked whether this was Appellant’s first violation on conditional release. 

The State objected, asserting that direct examination had only gone into 

the basis of the violation and that there were more questions the State 

would ask if the proceeding became a revocation hearing and danger 

hearing. The trial court responded that it was doing everything at this 

hearing at the same time: the violation, revocation, danger, and 

sentencing. The State argued the trial court could not take evidence for 
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the violation at the same time as the danger hearing, but the trial court 

disagreed and the matter proceeded as such.

The State then elicited testimony from the probation officer that, based 

on the affidavit, the DJJ’s position was that Appellant was unsuitable for 

juvenile sanctions. The State also elicited testimony from the probation 

officer about Appellant’s supervision history, which began when Appellant 

was nine years old and was referred to a diversion program for two counts 

of possession of a weapon on school property. Defense counsel objected,

arguing this was a prior offense which was not scorable on a score sheet 

and was inadmissible. However, the State argued, and the trial court 

agreed, that for purposes of the danger hearing, the prior offense could 

come in so that the court could analyze the appropriateness of juvenile 

sanctions. Defense counsel maintained that the trial court could not 

consider any juvenile priors more than five years old. The trial court 

responded that in determining whether juvenile sanctions were suitable 

for Appellant, it wanted to hear the history of his contact with juvenile 

sanctions. The probation officer then continued, explaining that Appellant 

was referred a second time to a diversion program three years later after 

being charged with possessing, making, or attempting to make explosives.

In lieu of the probation officer testifying further, the parties then 

stipulated that Appellant’s complete history with the juvenile system was 

included in one of the court files, as well as the PSI completed for the 

original sentencing. The State then elicited testimony that the probation 

officer believed that Appellant was a danger based on Appellant’s history 

of supervision with the juvenile justice system, his allegations in the four 

underlying cases, and the new crime being committed within six months 

of being released from the level 10 program.

At the conclusion of the hearing the trial court announced that it found 

the State proved Appellant committed a new crime while on conditional 

release, Appellant was a danger, and the juvenile sanctions previously 

imposed by the trial court were unsuitable. The trial court revoked the 

juvenile sanctions, denied Appellant’s request to sentence him as a 

youthful offender, determined Appellant was a VFOSC, and sentenced him 

to a 10-year mandatory minimum prison sentence for the armed burglary 

of a dwelling charge and five years in prison for each count in the other 

cases. The trial court entered a written order designating Appellant as a 

VFOSC.

Appellant gave notice of appeal.
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Appellate Analysis

Due Process Violation

We first address Appellant’s argument that the trial court violated his 

due process rights when it revoked juvenile sanctions for reasons not listed 

in the DJJ’s affidavit of unsuitability. Specifically, Appellant contends that 

where the document asserting he was unsuitable for juvenile sanctions 

alleged only a new crime as grounds, the trial court improperly considered 

his prior adjudications and supervision history as grounds for revoking 

juvenile sanctions. Appellant asserts he was not provided notice that the 

grounds for revoking juvenile sanctions would encompass anything 

beyond the new crime.

An order revoking juvenile sanctions is generally reviewed for an abuse 

of discretion. Brown v. State, 260 So. 3d 1101, 1104 (Fla. 3d DCA 2018). 

However, to the extent our review involves the interpretation of statutes, 

our review is de novo. Robinson v. State, 205 So. 3d 584, 590 (Fla. 2016).

Section 985.565, Florida Statutes (2018), provides the sentencing 

powers of the circuit court when a juvenile has been prosecuted in adult 

court and found guilty of a crime. § 985.565, Fla. Stat. (2018). The trial 

court has the option of imposing juvenile sanctions as an alternative to 

adult sanctions. § 985.565(1)(a), Fla. Stat. (2018).

If juvenile sanctions are initially imposed, but it is later determined that 

the sanctions are “unsuitable,” section 985.565(4)(c) states that the trial 

court “may revoke the previous adjudication, impose an adjudication of 

guilt, and impose any sentence which it may lawfully impose, giving credit 

for all time spent by the child in the department.” § 985.565(4)(c), Fla. 

Stat. (2018). Section 985.565(4)(c) also gives the grounds for determining 

that juvenile sanctions are unsuitable:

a child may be found not suitable to a commitment program, 

community control program, or treatment program . . . if the 

child commits a new violation of law while under juvenile 

sanctions, if the child commits any other violation of the 

conditions of juvenile sanctions, or if the child’s actions are 

otherwise determined by the court to demonstrate a failure of 

juvenile sanctions.

Id. The statute provides that the process for determining whether juvenile 

sanctions are unsuitable begins with the DJJ sending the sentencing court 

“a written report outlining the basis for its objections to the juvenile 
5

sanction and shall simultaneously provide a copy of the report to the state 

attorney and the defense counsel.” Id. It is also the DJJ’s responsibility 

to schedule a hearing within thirty days after sending the report for the 

trial court to determine if juvenile sanctions are unsuitable. Id.

The Third District has noted the lack of guidance “regarding the scope, 

parameters and due process requirements of either: (i) [the] DJJ’s ‘written 

report outlining the basis for its objections to the juvenile sanction,’ or (ii) 

the resulting disposition hearing to determine whether juvenile sanctions 

are suitable.” Brown, 260 So. 3d at 1105 (quoting § 985.565(4)(c), Fla. 

Stat.). However, because juvenile sanction revocation proceedings 

pursuant to section 985.565(4)(c) contain analogous procedures to 

probation revocation procedures, the Third District reasoned there is “no 

sound basis for creating and developing a disparate body of due process 

law for juvenile revocation proceedings. This is true especially in light of 

the Florida Supreme Court’s observation that the revocation of juvenile 

sanctions is an ‘identical’ situation to that of probation revocation.” Id. at 

1106 (quoting Jones v. State, 336 So. 2d 1172, 1175 (Fla. 1976)).

Brown is similar to this case in several ways. The defendant was 

charged as an adult but was subjected to juvenile sanctions. Id. at 1102. 

The charging document was the DJJ’s affidavit, which the Third District 

reasoned was the statutorily required “written report” of the DJJ “outlining 

the basis” for seeking “revocation of Brown’s juvenile sanctions – to 

determine what exactly [the] DJJ alleged as the basis for seeking 

revocation of Brown’s juvenile sanctions.” Id. at 1106. The only ground 

asserted in the DJJ’s charging document that Brown was not suitable for 

juvenile sanctions was an allegation of a new crime. Id. There were no 

factual allegations that Brown violated some other condition associated 

with his juvenile sanction or that the juvenile sanctions were not 

“otherwise” determined to have failed. Id.

Likewise, in the instant case, the DJJ’s affidavit asserted that Appellant 

was unsuitable for juvenile sanctions because he committed a theft in 

Georgia. The affidavit did not allege Appellant violated some other 

condition or that the juvenile sanctions were “otherwise” determined to 

have failed. Notably, however, this case differs from Brown because, there, 

the evidence at the unsuitability hearing was insufficient to prove the new 

law violation by a preponderance of the evidence. Id. at 1107. 

Additionally, in Brown, “the trial court focused not on the actual charges 

in the DJJ affidavit, but rather, on Brown’s history of conduct while under 

DJJ supervision.” Id. at 1106. In contrast, the trial court here focused on 

proof of the new crime (which was legally sufficient) in addition to

Appellant’s prior adjudications and supervision. 
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We note that the Third District observed in Brown that evidence of prior 

record and history of DJJ supervision would have been proper, if the DJJ 

had alleged that Brown’s pattern of conduct demonstrated a failure of 

juvenile sanctions. Id. The court also observed that “the trial court could 

have revoked Brown’s juvenile sanctions and imposed adult sanctions if 

the State proved that Brown had committed the offense in [the] DJJ’s 

charging document.” Id. at 1106–07. However, the Third District reversed 

because “[g]iven the one-dimensional allegation within [the] DJJ’s 

charging document, due process required that the disposition hearing, 

and evidence admitted at that hearing, should have been limited to 

whether Brown, by a preponderance of the evidence, committed the 

violation of law alleged in the charging document.” Id. at 1106.

The State contends that we should affirm on this issue because: (1) it 

was not preserved; (2) the trial court did not make comments about 

Appellant’s criminal adjudications and supervision history until after it 

commented that it found that there was sufficient proof Appellant 

committed a new crime; and (3) there was no fundamental error or due 

process violation by the trial court in considering Appellant’s prior 

adjudications and supervision history when determining whether to 

revoke juvenile sanctions.

We agree the issue was not preserved; however, we recognize that 

“revoking an individual’s probation for conduct not alleged in the charging 

document deprives the individual of due process and constitutes 

fundamental error.” Wells v. State, 60 So. 3d 551, 553 (Fla. 1st DCA 2011); 

Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003) (due process was 

violated by acceptance of violation of probation pleas which included a 

stipulation of a new law violation that was not contained in the affidavit of 

violation). Because it is clear the trial court discussed Appellant’s prior 

adjudications and supervision history before announcing its 

determination that juvenile sanctions were unsuitable for Appellant, we 

review the matter for fundamental error as a due process violation.

There is no dispute that Appellant was not put on notice that the trial 

court would consider any ground for determining whether juvenile 

sanctions were unsuitable other than the alleged new theft crime. 

Although the State seemingly attempts to argue that the trial court’s 

consideration of prior adjudications and supervision history was more for 

purposes of sentencing because the trial court did not discuss those 

factors until after it concluded the State sufficiently proved Appellant 

committed a new crime while on supervision, we reject the argument 

because the trial court violated due process.
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During argument on an evidentiary objection raised by Appellant, the 

State agreed with Appellant that consideration of Appellant’s prior record 

was relevant to the issue of whether Appellant should be declared a 

danger, and it was not relevant to whether juvenile sanctions were 

unsuitable (presumably because the State recognized there was only one 

ground alleged in the affidavit). The State more than once urged the trial 

court to first conduct the suitability hearing and determine if a violation 

occurred and if juvenile sanctions were unsuitable before considering 

evidence to determine whether Appellant was a danger and other matters 

appropriate for resentencing. Despite the State’s urging, the trial court 

wanted to do everything at one time and insisted on multiple occasions 

that counsel ask all the questions needed for both the unsuitability 

determination and sentencing as each witness testified. The trial court 

failed to recognize that the process under section 985.565(4)(c), similar to 

probation violation hearings, is a sequential three step process, where the 

trial court has to decide: (1) did Appellant willfully commit a substantive 

violation of supervision conditions; (2) if so, should probation supervision 

be revoked; and (3) if probation supervision is revoked, what is the 

appropriate sentence.

Because the trial court blurred the process by mixing evidence for the 

different determinations, the trial court’s analysis became flawed. A review 

of the transcript reveals the following sequence of oral determinations by 

the trial court: (1) Appellant committed a new crime while on DJJ 

supervision; (2) Appellant was a danger; and (3) juvenile sanctions were 

unsuitable. While it is true, as the State argues on appeal, that the trial 

court discussed the evidence establishing that Appellant committed a new 

crime before discussing Appellant’s prior record, our review of the record 

compels us to conclude that the trial court was equally, if not more,

concerned about Appellant’s escalating criminal record and use of 

weapons during the prior offenses. Thus, it appears the trial court violated 

Appellant’s due process rights and committed fundamental error in 

determining that Appellant’s juvenile sanctions were unsuitable and 

should be revoked. Ray, 855 So. 2d at 1261; Wells, 60 So. 3d at 553.

We also find it significant that immediately after closing arguments, the 

first statement announced by the trial court was: “Any reason I should not 

impose sentencing at this time?” The State said, “No, your Honor,” but no 

response was solicited from Appellant’s counsel. Instead, the trial court 

immediately launched into its analysis and findings. The repeated 

insistence of the trial court to mix evidence relevant to the suitability 

determination with evidence relevant to the danger determination and 

sentencing, coupled with the lack of compliance to assure both sides were 
8

ready to proceed with sentencing, demonstrates not only a lack of due 

process regarding notice of issues to be tried, but also a lack of due process 

regarding impartiality and an overemphasis on expediency. For that 

reason, we reverse and remand for further proceedings before a different 

judge.

Violent Felony Offender of Special Concern Designation

Appellant argues that the trial court misapplied the law when it 

conducted a danger hearing and designated him a VFOSC. Because our 

analysis focuses on statutory interpretation, our review is de novo. 

Robinson, 205 So. 3d at 590.

Section 948.06(8)(b), Florida Statutes (2018), defines a “violent felony 

offender of special concern” as including “a person who is on . . . [f]elony 

probation or community control related to the commission of a qualifying 

offense committed on or after the effective date of this act[.]” 

§ 948.06(8)(b)1., Fla. Stat. (2018). Section 948.06(8)(e) states in part:

(e) If the court, after conducting the hearing [regarding a 

violation of supervision conditions], determines that a violent 

felony offender of special concern has committed a violation of 

probation or community control other than a failure to pay 

costs, fines, or restitution, the court shall:

1. Make written findings as to whether or not the violent felony 

offender of special concern poses a danger to the community. 

§ 948.06(8)(e)1., Fla. Stat. (2018). The statute also lists the factors used 

in determining if an offender is a danger to the community. 

§ 948.06(8)(e)1.a.–e., Fla. Stat. (2018).

There is no dispute that Appellant was being supervised by the DJJ for 

a felony that was a qualifying offense as defined in section 948.06(8). 

However, we agree with Appellant’s argument that section 948.06(8) 

designating an offender as a VFOSC applies only to individuals who were 

on adult felony probation or community control before a violation of 

supervision occurred, and it does not apply to juveniles sentenced in adult 

court to juvenile sanctions pursuant to section 985.565. The view of this 

Court and the Fifth District that proceedings under section 985.565(4)(c) 

are comparable to violation of probation proceedings after adult sanctions 

are imposed at sentencing does not change the analysis. We rely on

several statutory provisions in reaching our conclusion that a VFOSC 

designation does not apply to a juvenile prosecuted as an adult who 
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violates supervision conditions after juvenile sanctions are imposed by the 

adult court.

The beginning point for statutory interpretation is the plain meaning of 

words chosen by the Legislature in enacting a statute. Jimenez v. State, 

246 So. 3d 219, 227 (Fla. 2018). As quoted above, a VFOSC is “a person 

who is on . . . [f]elony probation or community control.” § 948.06(8)(b)1., 

Fla. Stat. Sections 948.01(1) and (3), Florida Statutes (2018), make clear 

that “[a]ny state court having original jurisdiction of criminal actions” may 

“place[] the defendant on probation or into community control for a felony,” 

and it is the DOC, rather than the DJJ, that provides the supervision. § 

948.01(1)(a), (3), Fla. Stat. (2018); see also § 948.10(1), Fla. Stat. (2018)

(“The Department of Corrections shall develop and administer a 

community control program.”). More significantly, section 949.01, Florida 

Statutes (2018), makes clear that the DOC and DJJ operate in different 

realms. § 949.01, Fla. Stat. (2018) (“Nothing in chapters 947–949 shall be 

construed to change or modify the law respecting parole and probation as 

administered by a circuit court exercising juvenile jurisdiction.”).

Even more significant are statutory provisions governing conditional 

release. The DJJ witness in this case testified that Appellant was on 

conditional release after being released from commitment to the highest 

and most restrictive level of residential commitment in the juvenile system. 

Section 985.46(1)(a), Florida Statutes (2018), explains that “[c]onditional 

release is the care, treatment, help, supervision, and provision of 

transition-to-adulthood services to juveniles released from residential 

commitment programs to promote rehabilitation and prevent recidivism.” § 

985.46(1)(a), Fla. Stat. (2018) (emphasis added). In contrast, section 

947.1405(2), Florida Statutes (2018), provides:

(2) Any inmate who:

(a) Is convicted of a crime committed on or after October 1, 

1988, and before January 1, 1994, and any inmate who is 

convicted of a crime committed on or after January 1, 1994, 

which crime is or was contained in category 1, category 2, 

category 3, or category 4 of Rule 3.701 and Rule 3.988, Florida 

Rules of Criminal Procedure (1993), and who has served at 

least one prior felony commitment at a state or federal 

correctional institution;

. . . .
10

shall, upon reaching the tentative release date or provisional 

release date, whichever is earlier, as established by the 

Department of Corrections, be released under supervision 

subject to specified terms and conditions, including payment 

of the cost of supervision pursuant to s. 948.09.

§ 947.1405(2), Fla. Stat. (emphases added). Everyday language makes 

clear that “inmate” refers to a person in prison. It is commonly understood 

that juveniles committed to residential facilities are not “inmates.”

The words chosen by the Legislature in the statutes discussed above 

demonstrate that a VFOSC designation applies to a person on felony 

probation or community control supervised by the DOC who meets certain 

criteria. Our research reveals no language in Chapters 947, 948, or 985 

that suggests the Legislature intended that a VFOSC designation can 

apply to a juvenile prosecuted as an adult prior to the juvenile being placed 

on adult probation or community control supervised by the DOC. Thus, 

the trial court erred in following the State’s request to conduct a danger 

hearing and impose a VFOSC designation on Appellant.

Conclusion

Having determined that the trial court violated Appellant’s due process 

rights when revoking the juvenile sanctions imposed by the original 

sentencing and erred by designating Appellant as a VFOSC, we reverse 

Appellant’s convictions and sentences and his designation as a VFOSC. 

We remand the cases for further proceedings before a different judge.

Affirmed in part, reversed in part, and remanded with instructions.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.