DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

JONATHAN GOMEZ,

Appellee.

No. 4D13-3160

[July 15, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael Rothschild, Judge; L.T. Case No. 10-

9071CF10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, 

Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public 

Defender, West Palm Beach, for appellee.

MAY, J.

The State appeals an order reinstating the defendant’s probation after 

he admitted a violation of probation. It argues the trial court erred in 

failing to hold a danger hearing and in failing to make the required written 

findings under section 948.06(8), Florida Statutes (2013). We agree and 

reverse.

In 2010, the defendant pled open to one count of throwing a deadly 

missile into a vehicle and a second count of criminal mischief. The court 

adjudicated the defendant guilty and placed him on probation for five years 

on count I and gave him time served on count II. 

In 2013, the State filed a violation of probation, alleging the defendant 

violated probation by driving while license suspended three times, having 

an expired driver’s license for more than six months, possession of 

cannabis, and for having submitted an untruthful report. The defendant 

admitted the violations.
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The State argued that the trial court was required to conduct a danger 

hearing because the defendant was a Violent Felony Offender of Special 

Concern (“VFOSC”) based on a prior robbery conviction. § 948.06(8), Fla. 

Stat. (2013). The State further argued that section 948.06(8)(e) required

the court to make written findings. The trial court found that section 

948.06(8) did not require a danger hearing or written findings when a

probationer admits a violation of probation.

[T]he Court is going to enter a finding that 948.06 subsection 

(8) does not require the Court to have a separate formal danger 

hearing upon accepting of either a negotiated or open 

admission to a violation of probation from someone who’s 

subject to the provisions of the Anti-Murder Act.

The State reminded the court that the sentence would be illegal without 

the danger hearing and written findings. The court nevertheless dismissed 

the warrant, reinstated the defendant’s probation, and modified it to 

include a mental health evaluation and follow-up treatment. From this 

order, the State now appeals.

We have de novo review of issues involving statutory interpretation. 

E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009).

The State maintains that section 948.06(8) requires a danger hearing 

and written findings as to whether the defendant poses a danger to the 

community. The defendant responds that the court correctly found a 

danger hearing unnecessary because the State failed to prove he qualified 

as a VFOSC. Alternatively, the defendant argues that section 948.06(8)

does not require a danger hearing unless he unsuccessfully seeks 

dismissal of the violation. We agree with the State.

The legislature enacted the Anti-Murder Act in 2007, amending section 

948.06, Florida Statutes, to add subsection (8), and requiring an 

amendment to the Florida Rules of Criminal Procedure. In re Amendments 

to Fla. Rules of Criminal Procedure 3.790, 959 So. 2d 1187, 1188–91 (Fla. 

2007). The Anti-Murder Act “concerns the release of violent felony 

offenders of special concern and certain other offenders who are arrested 

for committing a material violation of probation or community control.” Id.

at 1188.

Under the Act, “[s]ection 948.06(8) imposes additional requirements on 

the trial court when a probationer before it on revocation proceedings is a 

[VFOSC].” Bailey v. State, 136 So. 3d 617, 618 (Fla. 2d DCA 2013); see § 

948.06(8)(a), Fla. Stat. (2013). VFOSC “means a person who is on:”
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1. Felony probation or community control related to the 

commission of a qualifying offense committed on or after the 

effective date of this act; 

2. Felony probation or community control for any offense 

committed on or after the effective date of this act, and has 

previously been convicted of a qualifying offense; 

. . . .

§ 948.06(8)(b)1.–2., Fla. Stat. Subsection (c) lists nineteen “qualifying 

offenses,” including “[r]obbery or attempted robbery under s. 812.13.” Id.

§ 948.06(8)(c)6.

Here, the defendant’s scoresheet listed a prior conviction for robbery, 

an enumerated qualifying offense under 948.06(8)(c)6. The defendant was 

on probation for throwing a deadly missile into a vehicle, which is a second 

degree felony. § 790.19, Fla. Stat. (2010). Therefore, the defendant 

qualified as a VFOSC under section 948.06(8)(b)2.

The defendant argues, however, that the State failed to prove that he 

was a VFOSC. He suggests there is no evidence he was previously 

convicted of robbery and the scoresheet is inadequate proof under 

Alcantara v. State, 39 So. 3d 535 (Fla. 5th DCA 2010). We disagree.

In Alcantara, the Fifth District reversed an enhanced sentence holding

that when a defendant disputes a qualifying offense, the state must 

provide “corroborating evidence of the offense or not consider the offense.” 

Id. at 537. Alcantara had disputed the prior conviction and the state failed 

to meet its burden of proving an enumerated qualifying offense. Id.

Here, however, the defendant did not dispute his status as a VFOSC. 

In fact, defense counsel referred to his client as a VFOSC: “The State will 

have more points to score on the scoresheet because [he is] VFO qualified.” 

Thus, Alcantara does not support the defendant’s argument. Because the 

defendant was undisputedly a VFOSC, the trial court was required to 

adhere to the requirements of section 948.06(8). 

The defendant next argues a danger hearing was unnecessary because 

he admitted to his probation violations. The State responds that the 

statute requires a danger hearing for all VFOSCs regardless of whether 

they admit the violation. Once again, we agree with the State.

(8)(a) [T]his subsection provides further requirements 
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regarding a probationer or offender in community control who 

is a violent felony offender of special concern. . . .

. . . .

(d) In the case of an alleged violation of probation or 

community control . . . :

. . . .

The court shall not dismiss the probation or community control 

violation warrant pending against an offender enumerated in 

this paragraph without holding a recorded violation-ofprobation hearing at which both the state and the offender are 

represented.

(e) If the court, after conducting the hearing required by 

paragraph (d), 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.

. . . .

2. Decide whether to revoke the probation or community 

control.

a. If the court has found that a violent felony offender of 

special concern poses a danger to the community, the court 

shall revoke probation and shall sentence the offender up to 

the statutory maximum, or longer if permitted by law.

b. If the court has found that a violent felony offender of 

special concern does not pose a danger to the community, the 

court may revoke, modify, or continue the probation or 

community control or may place the probationer into 

community control as provided in this section.

§ 948.06(8)(a), (d)–(e), Fla. Stat. (emphasis added).

“When a statute is clear, we do not look behind the statute’s plain 

language for legislative intent or resort to rules of statutory construction 

to ascertain intent.” Marrero v. State, 71 So. 3d 881, 886 (Fla. 2011). The 

Anti-Murder Act amended the general probation violation process. 
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Subsection (8)(d) now prohibits a court from dismissing a probation 

violation warrant if the probationer is a VFOSC “without holding a 

recorded violation-of-probation hearing at which both the state and the 

offender are represented.” § 948.06(8)(d), Fla. Stat. It requires the court 

to conduct a danger hearing and make written findings before determining 

the appropriate disposition. The statute does not differentiate between a 

probationer who admits a violation and one who requires a hearing.

“The Anti-Murder Act was specifically passed to prevent just the kind 

of thing that occurred below. It was designed to obviate the thought-to-be 

undesirable spectacle of a person on probation for a designated serious 

crime violating that trust only to be restored to the same or equivalent 

status.” State v. Martinez, 103 So. 3d 1013, 1016 (Fla. 3d DCA 2012).

The court did not hold the required danger hearing and also failed to

make the required written findings under section 948.06(8). We therefore 

reverse and remand the case for a danger hearing and for the court to 

make the requisite written findings. The court may then impose any legal 

sentence.

Reversed and remanded.

TAYLOR and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.