Case No. 2D20-294
Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED Appeal from the Circuit Court for Pasco County; Linda H. Babb, Judge. Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee. SLEET, Judge.
Luis Aldamas-Gonzales appeals the order revoking his probation and the resulting sentence of forty-five months' imprisonment for aggravated battery. Aldamas-Gonzales argues that the trial court erred by revoking his probation for conduct that was not alleged in the affidavit of violation of probation. Because Aldamas-Gonzales was properly put on notice as to the specific condition which he violated, we affirm the revocation of probation and the resulting sentence. However, we remand to correct two scrivener's errors in the revocation order.
During an October 2, 2016, bicycle ride, Aldamas-Gonzales stabbed the victim after the victim confronted Aldamas-Gonzales for falling out of bike formation. On July 18, 2019, Aldamas-Gonzales entered a guilty plea to aggravated battery. The court sentenced him to seven years' probation. On the order of probation, special condition 11 stated, "You will not associate with ___ during the period of supervision." However, there was no "X" in the box next to special condition 11, nor was there a name listed in the blank space. Other special conditions, including 35 and 37, did have an "X" in the box next to them. Special condition 35 stated, "You must not organize any bike rides or go on any organized bike rides," and special condition 37 stated, "You may ride a bike but with no more than two (2) people." On August 14, 2019, the State filed a violation of probation affidavit. The affidavit alleged that Aldamas-Gonzales violated special condition 11 "by associating with an organized bike group (riding a bike with more than two people) during the period of supervision."
At the violation of probation hearing, Aldamas-Gonzales' probation officer, Kelvin Reyes, testified that he received photos from the victim's father that showed Aldamas-Gonzales riding with a bike group. Roy Foley, a cycling coach who conducted bike rides, testified that Aldamas-Gonzales participated with the bike group and that although he did not start or finish with the group, Aldamas-Gonzales rode over forty miles with them. The State admitted photos of the biking group that consisted of over a dozen riders and Reyes testified that Aldamas-Gonzales admitted to participating in the group ride. At the conclusion of the hearing, the court orally revoked probation after noting that the original trial judge "was very clear, and there would have been no reason that you should have misunderstood that she said you can't ride in any bike ride that has more than two people unless they're related to you. And she was also very clear that it doesn't matter whether the victim is there or not."
The court entered an order revoking Aldamas-Gonzales' probation based on a violation of condition 11 "[b]y associating with an organized bike group (riding a bike with more than 2 people) during period of supervision" and sentenced him to forty-five months' imprisonment. Aldamas-Gonzales now appeals the revocation order, arguing that he was not given proper notice because the affidavit alleged a violation of special condition 11 instead of conditions 35 and 37.
Given that Aldamas-Gonzales did not preserve the error, we review it for fundamental error. See Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010).
It is, of course, a violation of due process and fundamental error to revoke a defendant's probation based on conduct that was not alleged in the affidavit. However, not every defect in an affidavit of violation amounts to a violation of due process. "In order to violate due process, the affidavit must be insufficient to give the defendant notice of the nature of the charges against him and result in prejudice to his ability to prepare a defense."Quijano v. State, 270 So. 3d 549, 551 (Fla. 2d DCA 2019) (citations omitted) (quoting Jackson v. State, 807 So. 2d 684, 685 n.3 (Fla. 2d DCA 2001)). "[A] charging document's error in citation 'shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to the defendant's prejudice.' " Washington v. State, 228 So. 3d 707, 708 (Fla. 2d DCA 2017) (quoting McMann v. State, 954 So. 2d 90, 91 (Fla. 1st DCA 2007)).
Here, the affidavit alleges that Aldamas-Gonzales violated special condition 11 "by associating with an organized bike group (riding a bike with more than two people) during the period of supervision." While the affidavit alleges a violation of special condition 11, it actually describes a violation of special conditions 35 and 37, which prohibit him from going on organized bike rides or biking with more than two people and for which the State presented sufficient evidence to prove a violation. Therefore, Aldamas-Gonzales was given sufficient notice of the nature of the charges against him, and there was no prejudice to his ability to prepare a defense.
Lastly, we note that the revocation order incorrectly reflects that Aldamas-Gonzales admitted to the violation of probation instead of reflecting that the trial court found him to be in violation after an evidentiary hearing. Thus, we affirm the revocation of probation and the resulting sentence but remand to correct the scrivener's error in the revocation order to properly reflect that the trial court found Aldamas-Gonzales in violation after a hearing and that he was actually found in violation of special conditions 35 and 37.
Affirmed and remanded. NORTHCUTT and ATKINSON, JJ., Concur.