APPEALS FOR THE WEEK OF SEPTEMBER 5th, 2011

In STATE v. HOOD, No., 2D10-54 (Fla. 2d DCA Sep. 2, 2011), a business was broken into. Two cars with custom paint jobs and a set of tires were missing. The owner of the business observed that someone had rammed a car into the back door of the business. Maroon paint was on the door. The Defendant had been to the business the day before and had been driving a maroon car. The owner believed the maroon paint had come from the Defendant's car. The next day, the owner went out in search of the stolen cars. He identified one of the cars in a garage attached to a house; a man was working on the car. The owner identified the Defendant's maroon car parked at the house. The owner called police, who went to the house without a search warrant. An officer opened the garage door and saw the stolen car. The police entered the house and saw a set of tires in a bedroom. Then they obtained a warrant, returned, and searched the house.

The trial court granted the Defendant's motion to suppress, finding that because there were no exigent circumstances and there was no consent, the police had unlawfully entered and searched the home.
Accordingly, the officers' observations could not properly be used to support a search warrant. The trial court also noted that it believed that the owner's observations provided a substantial basis for concluding that probable cause existed. But the court ultimately found that those independent facts could not form the basis for the warrant because the officers' observations made during the unlawful entry had tainted the affidavit.

On appeal, the State did not dispute that the entry and search of the garage and the house were unlawful. The DCA recognized that evidence resulting from an illegal search cannot be the basis of probable cause supporting a subsequent search warrant. However where independently and lawfully obtained evidence establishes a substantial basis for concluding that probable cause existed to support the issuance of a search warrant, the inclusion of illegally obtained evidence in a supporting affidavit does not automatically invalidate the resulting search warrant. Properly a court must excise the invalid allegations from the affidavit and then determine whether sufficient valid allegations remain to support a finding of probable cause. Here the information obtained form the owner of the business was sufficient to establish probable cause for a search warrant independent of the evidence uncovered during the warrantless entry and search of the house and garage because it suggested that the Defendant had stolen the vehicles from the business and that evidence of the theft and burglary could be located at the house. A victim of a crime is presumed to be a trustworthy informant. Therefore the DCA reversed the trial court.

In LEE v. STATE, No. 2D10-1228 (Fla. 2d DCA Aug. 31, 2011), the Defendant was convicted on a guilty plea of one count of possession of cocaine, one count of driving while license suspended or revoked, and one count of fleeing to elude in two separate circuit court cases. The trial court withheld adjudication and sentenced the Defendant as a youthful offender to concurrent terms of twenty-four months probation on the possession and fleeing offenses and to six months probation on the driving offense.

Two weeks later, the Department of Corrections filed affidavits of violation of probation in both cases based on allegations that the Defendant had committed new offenses since being placed on probation.
Following a hearing the court found that the Defendant had violated his probation by trafficking in cocaine, resisting an officer with violence, aggravated assault on a law enforcement officer, sale of cocaine, and delivery of cocaine. Based on these violations, the trial court revoked the Defendant's probation and sentenced him to consecutive five-year prison terms on the possession and fleeing offenses and to time served on the driving offense. In doing so, the trial court specifically declined to continue the Defendant's status as a youthful offender.

The DCA held that one of the new offenses was proven only by hearsay, which can not alone support a finding of a violation of probation.
Another offense was not charged in the affidavit of violation of probation. A trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation. However when a trial court relies on both proper and improper grounds for revocation and it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, the revocation of probation is proper. Therefore the DCA affirmed the revocation of probation.

However the DCA reversed the sentence on the VOP. Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.
While a defendant is not entitled to be sentenced as a youthful offender on any new offense he or she may have committed, a court cannot revoke a defendant's youthful offender status on offenses for which that defendant has already been sentenced. However, while the court must maintain the defendant's youthful offender status upon revocation of probation, the court is not limited to imposing the usual youthful offender sentence of six years or less in prison if the revocation is based on a substantive violation of probation. Instead, in that instance the court may sentence a youthful offender to a period not "longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated." §
958.14 Fla. Stat. (2010).

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