DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RASHAD MILANES,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D19-2435

                              [June 3, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas J. Coleman, Judge; L.T. Case No.
09008984CF10A.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Rashad Milanes appeals the revocation of his probation and imposition
of concurrent fifteen-year prison sentences. He contends that the court
committed fundamental error by relying on impermissible considerations
in finding that he willfully violated probation and imposing sentence,
without providing him an opportunity to be heard. We agree and reverse.

    Appellant Milanes was placed on probation for one count of sexual
battery by a person in familial authority and one count for lewd and
lascivious molestation of a victim over the age of twelve. He was sentenced
to five years in prison followed by ten years of sexual offender probation.

   Upon his release from prison in 2013, Milanes commenced his
probationary period. More than a year later in 2014, a Violation of
Probation was filed alleging that he possessed marijuana and failed to take
an annual polygraph test. Milanes admitted the violations and entered
into a plea wherein he served 270 days in the county jail and was
reinstated on probation with modified terms. In March of 2015, a
probation officer filed a Technical Violation Notification stating that
Milanes failed to take a polygraph test within thirty days of his release
from jail. However, neither a violation of probation affidavit nor an arrest
warrant was issued.

   An affidavit was filed in June 2015 alleging that Milanes violated his
probation by having unapproved communications with a child under the
age of eighteen. The trial court held a hearing, found him not guilty of the
violation, and reinstated probation.

    Three years later, in April 2018, his probation officer filed an affidavit
accusing him of failure to register on the internet as a sexual offender and
related charges. He admitted the violations and was reinstated on
probation with a special condition that he serve 180 days in the county
jail.

    The current appeal arises out of an Affidavit of Violation of Probation
filed in March 2019, alleging that he had failed to remain in his residence
between 10:00 p.m. and 6:00 a.m., in other words, alleging that he missed
his curfew. The affidavit described the violation:

      Circumstances: On February 17, 2019, the offender during
      his curfew hours (10pm until 12:10 am) wasn’t at his
      approved residence located at the 2700 block of N. Federal
      Highway according to G.P.S tracking. The offender was at the
      Sawgrass Lanes (Bowling Alley) . . . G.P.S. on call Probation
      Officer [] called the offender at approximately 10:05 pm and
      instructed him to immediately return to his approved
      residence. The offender failed to return back to his approved
      residence for two (2) hours until 12:10 am.

The accompanying report from the probation officer lists the prior
incidents, and added that a technical violation notification was submitted
by his probation officer in 2013 for the failure to abide by the mandatory
curfew, but the court at the time declined to issue a warrant for the
offender’s arrest. There is no other reference in the record and attached
progress docket to this technical violation notification.

   Milanes denied that he committed a willful and substantial violation by
missing his curfew. The trial court then conducted a final Violation of
Probation hearing. The probation officer testified that he had instructed
Milanes on his curfew and gave him a G.P.S. monitor. On the night in
question, the monitor showed him at the Sawgrass Lane Bowling Alley at
10:00 p.m. Milanes did not return to his house until 12:10 a.m. The

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officer did not receive any voicemails or messages that evening from
Milanes explaining why he missed curfew, noting that he could have left a
message even though the probation office was closed. An on-call probation
officer testified that she receives the alerts when a G.P.S. monitor alarm
occurs outside of normal business hours. On the date in question, she
received an alert at 10 p.m. that Milanes was at the Sawgrass bowling
alley. She spoke with Milanes who told her he was waiting for an Uber
driver to pick him up. His speech was slurred. The G.P.S. monitor showed
he arrived at his home at 12:10 a.m.

    Milanes testified that he had gone to the bowling alley with a friend
around 7:00 p.m. to celebrate his new job, which he would start the next
day. He had no money and did not have his phone with him. His friend
bought him three beers and two rounds of pool. Before 9:30 p.m. he used
his friend’s phone and called, Jasmine, the mother of his son, for a ride
home. She lived about five minutes from the bowling alley and would
routinely provide a ride for him. However, Jasmine called back and told
him she couldn’t find her keys. He was not able to call his probation
officer, because the officer’s phone number was not in his G.P.S. device.
He then asked his friend if she could drive him to his house, but she
thought she was too intoxicated to drive. He didn’t have money or a cell
phone to call a taxi or Uber.

   Milanes said he waited forty minutes to an hour for the friend to sober
up, but he became concerned about getting in an accident, so he declined
the ride and walked to Jasmine’s house to help her look for her keys which
they did not find. Then he tried calling family members to help. His
mother, who lives in Georgia, finally called back a half an hour later and
agreed to call him an Uber. He did not recall how long it took, but
eventually the Uber arrived and took him home.

   The next morning Milanes called his probation officer and told him why
he missed his curfew. The officer explained to him that he would have to
violate him because of the lengthy delay in getting home.

    After the presentation of this evidence, both the State and the defense
gave closing arguments to the court. The court immediately determined
that Milanes had willfully and substantially violated his probation by the
curfew violation. It explained that two factors influenced its decision. The
first was Milanes’s probation history. It pointed to a May 2013 curfew
violation, which the court described as “a pass” because the judge had not
violated him. The court then noted a second violation in May of 2015,
which was “warning number two about curfew.” The court pointed to a
third curfew violation in June 2015. Based upon this history, the trial

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court found that Milanes was “resistant to supervision” and did not
understand that curfew was a “hard line.”

   At this point, it should be noted that none of what the court treated as
facts regarding Milanes’s probation violation history is confirmed by any
testimony or documents in our record. There is only the reference to a
May 2013 curfew technical violation, but there is nothing in this record,
other than the note in the 2019 report to confirm this, or in the progress
docket which is also part of this record. Nothing in the record supports
the other two curfew violations found by the trial court. Their dates match
two 2015 affidavits of violation, but they had nothing to do with curfew
violations. Thus, the court appears to be completely mistaken about the
evidence, even if the court could have taken notice of it without allowing
Milanes’s counsel a chance to inspect or question it.

   The court also found that Milanes should not have gone out drinking
and put himself in a position over which he had no control. Believing that
Milanes could have called his mother earlier to get an Uber ride home, the
court found that it was his lack of action which caused his probation
violation. The court concluded that considering Milanes’s “prior history of
not being able to conform to the conditions of probation . . . . he knowingly,
willfully and substantially violated the terms and conditions of his
probation.” Without giving Milanes any opportunity to address the court
on his sentence, the court immediately sentenced him to concurrent fifteen
years terms in prison for each count of the original charges. Milanes
appeals.

   Milanes contends on appeal that the trial court violated his right to due
process by considering his prior probation history in both the violation
hearing and in imposing the sentence. The court ruled without affording
Milanes the opportunity to respond and without providing him, as was his
right, a hearing focused on the appropriate sentence. While no objection
was lodged, because the court ruled before one could be made, we
conclude that the court committed fundamental error.

    The doctrine of fundamental error must be exercised cautiously and
rarely. In Ray v. State, 

, 960 (Fla. 1981), the court set the
criteria for permitting errors to be raised on appeal when they had not
been properly preserved in the proceedings in the trial court:

      [F]or error to be so fundamental that it may be urged on
      appeal, though not properly presented below, the error must
      amount to a denial of due process. . . .


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      Fundamental error has been defined as “error which goes to
      the foundation of the case or goes to the merits of the cause
      of action.” Sanford v. Rubin, 

, 137 (Fla.1970).
      The appellate courts, however, have been cautioned to
      exercise their discretion concerning fundamental error “very
      guardedly.”

with Judge Hubbart’s observation
      that the doctrine of fundamental error should be applied only
      in the rare cases where a jurisdictional error appears or where
      the interests of justice present a compelling demand for its
      application. Porter v. State, 

(Fla. 3d DCA)
      (Hubbart, J., dissenting), remanded, 

      (Fla.1978), rev’d. on remand, 

(Fla. 3d DCA
      1979).

The supreme court has also described fundamental error as one which
must “reach down into the validity of the trial itself to the extent that a
verdict of guilty could not have been obtained without the assistance of
the alleged error.” Harrell v. State, 

, 941 (Fla. 2005) (quoting
Brown v. State, 

, 484 (Fla.1960)).

    This appeal is one of those rare cases requiring the application of
fundamental error. Milanes was denied due process when the trial court
relied on unsubstantiated prior misconduct to conclude that Milanes’s
violation of probation was willful, and in determining to revoke probation
and impose a sentence for the violation. It further erred by failing to allow
a sentencing hearing to determine the appropriate punishment.

    Whether to revoke probation involves a two-step process. See Savage
v. State, 

, 621-23 (Fla. 2d DCA 2013). First, the trial court
must find by a preponderance of the evidence that the probationer willfully
and substantially violated probation. Second, the court must then
determine whether to revoke probation.

court reviews
the first step for competent substantial evidence to support the revocation
and for an abuse of discretion as to the second step.

Harrington v. State, 

, 298 (Fla. 4th DCA 2018).

   After the presentation of evidence and argument of counsel, the trial
court reviewed Milanes’s prior probation record and significantly relied on
what the court apparently believed were prior violations of curfew offenses
to determine that the present violation of curfew was willful and
substantial. The defense had no opportunity to defend against these
charges. In fact, the trial court’s factual recitations appear to be
completely unsubstantiated or wrong.


                                      5
   The first violation mentioned by the court is not reflected in the record,
except by a note made by the current probation officer that a prior
probation officer had filed a technical violation of curfew. Milanes was
never found to have violated curfew at that time, as no Affidavit of Violation
was even filed, nor is there a notification letter of a technical violation in
the record. See § 948.06(1)(h), Fla. Stat. (2019). It is a matter of sheer
conjecture as to the extent of the violation or what the court at the time
thought of it.

   The trial court stated that a second curfew violation occurred in March
2015, but there is no evidence of any curfew violation. While Milanes did
admit to a technical violation of probation at that time, it was for failure to
take a polygraph test within thirty days of release from jail, not a curfew
violation. And the third curfew violation attributed to Milanes by the trial
court is also a mistake. Milanes was in fact charged with a violation in
June 2015, but it involved unapproved communications with the victim,
not a curfew violation. Moreover, Milanes was found not guilty of the
violation.

   In sum, the trial court misconstrued the record and relied on false
evidence to conclude that Milanes was a repeat curfew violator, which led
the court to conclude that the current violation of curfew was willful and
substantial, despite Milanes’s explanation of how it occurred:

      So when you look at the situation he put himself in and you
      factor that in with the prior history of not being able to conform
      to the conditions of probation and being aware that curfew
      violations could and did -- at one point he got a pass and
      another point was in violation. This court finds that he
      knowingly, willfully and substantially violated the terms and
      conditions of his probation.

(Emphasis added.) We conclude that it violates due process for a trial
court to rely on unsubstantiated charges in finding a violation of probation
to be willful and substantial, just as the court may not rely on
unsubstantiated charges in sentencing. See Reese v. State, 

, 1068 (Fla. 4th DCA 1994) (“[U]nsubstantiated allegations of
misconduct may not be considered by a trial judge at a criminal sentencing
hearing and to do so violates fundamental due process.”). In this case,
without those erroneous findings, we cannot conclude that the trial court
would have found the evidence to support a finding of willfulness sufficient
to violate his probation. Thus, the trial court’s denial of due process goes
to the validity of the result itself and constitutes fundamental error. The


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appropriate remedy for this violation of due process is to require a new
violation of probation hearing.

   The trial court also erred by immediately proceeding to impose the
sentence without affording Milanes a hearing focusing on the sentence to
be imposed. Florida Rule of Criminal Procedure 3.720 requires a
sentencing hearing to precede the imposition of the sentence.          A
sentencing hearing is mandatory. See State v. Scott, 

, 221
(Fla. 1983).

   This case is similar to Harrington. There, the court held a violation of
probation hearing and, without holding a sentencing hearing, sentenced
the defendant to forty-two years in prison for the violation. We reversed
for a sentencing hearing, as we held that “the consideration of and
determination as to whether to revoke probation is a process separate from
a violation hearing.” 

. Citing to Black v.
Romano, 

(1985), we noted that a defendant in a probation
violation case has the right to be heard both on the issue of whether the
defendant violated probation and on the sentence to be imposed. “This
hearing may be informal in nature, but there must be a reasonable
opportunity to be heard.” 

.

   Just as in Harrington, in this case the trial court held a violation of
probation hearing but immediately sentenced Milanes without affording
him any opportunity to be heard on the sentence. This was a denial of
due process.     In addition, as noted above, the court relied on
unsubstantiated prior conduct as sentencing factors, which in and of itself
constitutes fundamental error. See Hillary v. State, 

, 4 (Fla.
4th DCA 2017); Fernandez v. State, 

, 496 (Fla. 2d DCA
2017).

   For these reasons, we reverse the order revoking probation and
sentence and remand for a new hearing. We direct that this case be
assigned to a different judge for the purposes of the revocation hearing
and, if applicable, sentencing hearing.

KLINGENSMITH and KUNTZ, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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