Third District Court of Appeal
State of Florida
Opinion filed July 1, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0209
Lower Tribunal No. 22-CF-178-P
Tami Kutz Robertson,
Appellant,
vs.
State of Florida,
Appellee.
An Appeal from the Circuit Court for Monroe County, James W. Morgan, III, Judge.
Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
Before FERNANDEZ, LINDSEY, and GORDO, JJ.
LINDSEY, J.
Tami Kutz Robertson appeals orders revoking her probation and
sentencing her to 36.5 months of imprisonment. The sole issue on appeal
is whether the trial court erred when it granted her motion to correct
sentencing errors but did not conduct a new sentencing hearing. It did, so
we reverse the trial court’s decision.
Based on a domestic dispute with her husband on Independence Day
in July 2022, Robertson was charged with, and pleaded guilty to, the
following: Count 1: Aggravated battery with a deadly weapon; Count 2:
Aggravated assault with a deadly weapon; Count 3: Simple battery; and
Count 4: Tampering with evidence.
Pursuant to a negotiated plea agreement, a predecessor judge
sentenced Robertson to concurrent, 4-year terms of probation on counts 1,
2, and 4. For count 3, the misdemeanor battery charge, that judge sentenced
her to 1 year of probation. Then, in December 2023, Robertson was accused
of violating probation. She admitted that violation in February 2024. In
response, the predecessor judge reinstated probation but modified the
probation order by adding a special condition requiring Robertson to stay at
least 500 feet away from her husband.
2
In March 2024, the State accused Robertson of violating her probation
a second time. Robertson denied the allegation and asked the trial court to
conduct the probation violation hearing giving rise to this appeal.
The trial court held Robertson’s probation violation hearing in January
2025. Based on evidence the State presented during the hearing, the trial
court found that Robertson violated her probation. During the sentencing
phase of the probation violation hearing, the trial court confirmed that
Robertson qualified as a violent felony offender of special concern
(“VFOSC”). Robertson allocuted and insisted that she would never do
anything to hurt her husband or his family. Nor would she ever go anywhere
they go.
The trial court revoked probation on Counts 1, 2, and 4 and
resentenced Robertson to concurrent terms of 36.5 months in Florida state
prison for each count. However, pertinent to this appeal, the trial court did
not make findings as to whether Robertson poses a danger to the community
pursuant to the factors in section 948.06(8)(e), Florida Statutes (2022), either
in writing or orally.1 Robertson filed a timely notice of appeal.
1
This is an undisputed fact.
3
Upon reviewing the record on appeal, counsel for Robertson realized
that even though the trial court acknowledged that Robertson qualified as a
VFOSC, the trial court never made any written or oral findings about whether
Robertson posed a danger to the community. He then filed a motion to
correct sentencing errors, arguing that Robertson is entitled to resentencing
under this Court’s decision in McCray v. State, 283 So. 3d 406 (Fla. 3d DCA
2019).
On July 23, 2025, the trial court held a hearing on the motion to correct
sentencing errors. There, the trial court and the State both agreed that the
court erred by failing to make the dangerousness findings required by section
948.06(8)(e)2 and McCray. See 283 So. 3d at 408. Notably, the trial court
2
The statute provides, in relevant part:
(8)(a) In addition to complying with the provisions of subsections
(1)-(7), this subsection provides further requirements regarding
a probationer or offender in community control who is a violent
felony offender of special concern . . .
(d) . . . 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-of-probation 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
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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. In determining the danger to the community posed
by the offender’s release, the court shall base its findings on one
or more of the following:
a. The nature and circumstances of the violation and any new
offenses charged.
b. The offender’s present conduct, including criminal convictions.
c. The offender’s amenability to nonincarcerative sanctions
based on his or her history and conduct during the probation or
community control supervision from which the violation hearing
arises and any other previous supervisions, including disciplinary
records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.
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), Fla. Stat. (2023) (emphasis added).
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and the State agreed that Robertson does not pose a danger to the
community. The only disputed issue at the hearing was the question of
remedy. Robertson argued that the remedy required by McCray is a new
sentencing hearing where Robertson would have the opportunity to present
mitigating evidence.
The State explained that it would prefer not to have an entirely new
sentencing hearing, but acknowledged that McCray and Walker v. State, 354
So. 3d 626 (Fla. 2d DCA 2023) support Robertson’s claim that she is entitled
to a new sentencing hearing.3 It also suggested the trial court merely enter
a written order finding that Robertson does not pose a danger to the
community to cure the error and circumvent the need for a new sentencing
hearing. The trial court agreed with the State and stated that it would enter
a written order partially granting Robertson’s motion to correct sentencing
error but denying her requested remedy, as well as an order finding that
Robertson does not pose a danger to the community. The trial court later
entered those orders and this appeal followed.
Robertson is correct in asserting that she is entitled to a new
sentencing hearing. In Gibson v. State, published after the facts here were
3
Robertson was not present for the hearing on the motion to correct sentencing error.
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established, we made clear that a probationer is entitled to an order of
revocation supported by written findings justifying such revocation:
The probationer is entitled . . . [to] a written statement for
revoking probation by the factfinder as to the evidence relied on
and the reasons or revoking probation.” McCloud v. State, 653
So. 2d 453, 455 (Fla. 3d DCA 1995) (quoting Black v. Romano,
471 U.S. 606, 612, 105 S. Ct. 2254, 85 L.Ed.2d 636 (1985)).
“When, as here, the trial court has failed to enter any written
order of revocation, this Court has, on plenary appeal,
consistently granted relief in the form of a remand with directions
for the trial court to enter a written order of revocation.” Ward v.
State, 306 So. 3d 1004, 1005 n.1 (Fla. 3d DCA 2020). We,
therefore, remand to allow the trial court to memorialize, in an
appealable written order, the evidence and basis for its probation
violation finding. Upon entry of a probation revocation order,
Gibson—if he so chooses—may appeal the order in a new
appeal. See Johnson v. State, 388 So. 3d 255, 256 (Fla. 3d DCA
2024).
422 So. 3d 691, 693 (Fla. 3d DCA 2025).
We also reversed Gibson’s sentencing order and remanded for the trial
court to conduct another sentencing hearing with directions that the trial court
shall make the dangerousness determination required by section 948.06(8),
and that the trial court shall include the written findings required by section
948.06(8)(e) in its sentencing order. In doing so, we further elaborated as
follows:
This Court has held that the trial court’s compliance with section
948.06(8) is mandatory, and the court’s failure to comply with this
statute requires reversal and remand for a new sentencing
hearing. See McCray v. State, 283 So. 3d 406, 409 (Fla. 3d DCA
2019) (reversing sentence where the trial court, at sentencing,
7
failed to make the dangerous determination required by section
948.06(8), and remanding for a new sentencing hearing with
directions that the trial court make the required written findings
when imposing the defendant’s sentence); State v. Rincon, 273
So. 3d 1101, 1102-03 (Fla. 3d DCA 2019) (reversing the trial
court’s dismissal of an affidavit of violation of probation and
contemporaneous termination of the defendant’s probation
where the trial court failed to comply with the procedural
imperatives of section 948.06(8)); accord Walker v. State, 354
So. 3d 626, 630-31 (Fla. 2d DCA 2023) (vacating a sentencing
order and remanding for another sentencing hearing in
conformity to section 948.06(8), where the trial court failed to
make the requisite dangerousness determination); Barber v.
State, 207 So. 3d 379, 384-85 (Fla. 5th DCA 2016) (recognizing
that “there are no provisions in [section 948.06(8)(e)] that make
an exception for cases where the prison sentence is appropriate
regardless of whether the defendant is or is not a danger,”
reversing a sentencing order and remanding for a new
sentencing hearing with directions that the trial court make the
required written findings).
Id. at 694.
We are bound by Gibson and McCray. Accordingly, we reverse
Robertson’s sentencing order and remand for the trial court to conduct a new
sentencing hearing. The trial Court shall, consistent with Gibson and
McCray, make the dangerousness determination required by section
948.06(8), and include in its sentencing order the written findings required
by section 948.06(8)(e). McCray, 283 So. 3d at 409; Gibson, 422 So. 3d at
693.
Reversed and remanded with instructions.
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