Baretta Maurice Mathis v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
BARETTA MAURICE MATHIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2025-0734
[December 3, 2025]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Jr., Judge; L.T. Case No. 50-2023-CF-
006644-AXXX-WB.
Daniel Eisinger, Public Defender, and Ethan R. Goldberg, Assistant
Public Defender, West Palm Beach, for appellant.
James 	Uthmeier, 	Attorney 	General, 	Tallahassee, 	and 	Nathanial
LeBlanc, Assistant Attorney General, West Palm Beach, for appellee.
CIKLIN, J.
Baretta 	Mathis 	appeals 	the 	revocation 	of 	his 	probation 	and
corresponding sentence. 	Mathis raises three arguments, two of which we
agree with and address. 	The remaining argument is meritless, and we
affirm on that point without further discussion.
Mathis was given a twenty-four-month probationary period. 	Special
condition 8 of his probation required him to “successfully complete 50
hours of community service at a rate of NO LESS THAN 10 HOURS PER
MONTH, at a work site approved by [his] officer.” Roughly six months into
the probationary term, the state filed an affidavit of violation of probation
alleging Mathis had violated his probation by committing a new criminal
offense contrary to standard condition 5 and by failing to complete 50
hours of community service at a rate of 10 hours per month contrary to
special condition 8.
At the violation of probation hearing, the state presented the testimony
of Mathis’s probation officer, a law enforcement officer, and the alleged

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victim of the new criminal offense. At the end of the hearing, the trial court
found that the state met its burden of proving that Mathis had violated his
probation by failing to abide by both standard condition 5 and special
condition 8. 	The trial court then proceeded to revoke and terminate
Mathis’s probation and sentence him to 31.2 months in prison.
On appeal, Mathis first argues that the trial court fundamentally erred
by revoking his probation where the state had failed to prove that his
violation of special condition 8 was willful and substantial, because his
probation order did not specify when he was required to begin community
service hours, and he had ample time remaining on his sentence to
complete the hours at the required rate.
Although generally “a trial court’s finding of a willful and substantial
violation of probation is reviewed for competent substantial evidence, and
the trial court’s decision to revoke probation is reviewed for abuse of
discretion,” Mitchell v. State, 270 So. 3d 562, 567 (Fla. 4th DCA 2019),
because 	Mathis 	failed 	to 	preserve 	the 	issue 	by 	making 	this 	specific
argument below, our review is limited to fundamental error, see Odom v.
State, 15 So. 3d 672, 676 (Fla. 1st DCA 2009).
A trial court errs in finding a violation of probation for failing to
complete required community service where a probation order contains no
formally imposed deadline to complete the service hours and sufficient
time remains in the probationary period to complete the service hours.
S.R. v. State, 925 So. 2d 474 (Fla. 4th DCA 2006). 	“When a sentencing
judge 	intends 	for 	a 	probationer 	to 	work 	in 	community 	service 	at 	a
continuous rate each month at the start of probation, the order must so
state.” 	Marzendorfer v. State, 976 So. 2d 596, 600 (Fla. 1st DCA 2007)
(emphasis added); see also Pollard v. State, 930 So. 2d 854, 855 (Fla. 2d
DCA 2006) (“[T]he State cannot prove a willful and substantial violation of
a condition to complete community service hours, even when the order
contains a per-month rate of completion, when the order does not contain
a beginning and ending date for completing the hours and when there is
sufficient time remaining for the probationer to complete the required
hours at the required rate.”); Willis v. State, 727 So. 2d 952, 953 (Fla. 4th
DCA 1998) (“[B]ecause there was no time schedule for payment of the costs
or performance of the community service, [defendant] had until the end of
his probationary term to comply with those conditions.”).
As 	Mathis 	contends, 	the 	probation 	order 	merely 	required 	him 	to
complete 50 hours of community service at a rate of at least 10 hours per
month. 	The probation order does not state a required start date, and his
probation officer testified the order states that the hours must be done 30

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days before the end of probation. With approximately a year and a half of
his probationary term remaining, Mathis had ample time within which he
could have completed the community service. 	Accordingly, the evidence
did not support a willful and substantial violation of special condition 8.
The trial court erred by finding otherwise, and this error is fundamental.
See Jackson v. State, 959 So. 2d 1282, 1283 (Fla. 1st DCA 2007) (“A trial
court commits fundamental error when it finds that a probationer has
violated his or her probation based on a term not ordered by the court.”).
Mathis 	next 	argues 	that 	the 	trial 	court 	fundamentally 	erred 	by
proceeding 	immediately 	to 	revocation 	and 	sentencing 	following 	the
evidentiary portion of the violation of probation hearing. 	We agree, and
the state commendably concedes error.
Addressing an alleged VOP is a two-step process in which
the trial court first determines whether, by a preponderance
of 	the 	evidence, 	the 	defendant 	willfully 	and 	substantially
violated a condition of probation (the violation phase) and
then, 	second, 	whether 	probation 	should 	be 	revoked 	(the
sentencing phase). Milanes[ v. State, 296 So. 3d 933, 937 (Fla.
4th DCA 2020)]. To satisfy due process, a defendant must be
provided an opportunity to be heard on two issues: 	“(1)
whether defendant has violated a condition of probation, and
(2) what sentence should be imposed. 	This hearing may be
informal 	in 	nature, 	but 	there 	must 	be 	a 	reasonable
opportunity to be heard.” Harrington v. State, 238 So. 3d 294,
299 (Fla. 4th DCA 2018).
Randolph v. State, 355 So. 3d 442, 448 (Fla. 4th DCA 2023). 	“[T]he
consideration of and determination as to whether to revoke probation is a
process separate from a violation hearing . . . .” Harrington, 238 So. 3d at
299.
In Harrington, where the defendant was afforded a hearing only as to
whether he violated a condition of probation, this court remanded to the
trial 	court 	“for 	a 	hearing 	on 	whether 	revocation, 	modification 	or
continuation of Appellant’s probation is the appropriate course of action
and, if either revocation or modification is selected, the contours of any
sentence imposed.” 	Id. at 300. 	The denial of a hearing on whether
probation should be revoked and on sentencing amounts to a denial of due
process. See Milanes, 296 So. 3d at 936 (holding trial court fundamentally
erred by ruling without affording defendant an opportunity to respond at
violation 	of 	probation 	hearing 	and 	without 	providing 	him 	“a 	hearing
focused on the appropriate sentence”).

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Here, too, the trial court fundamentally erred when it proceeded to
revoke probation and sentence Mathis immediately after finding he had
violated probation and before affording him the opportunity to object or be
heard. Although Mathis received the lowest permissible sentence and was
thus unlikely to receive a different sentence, as the state concedes, Mathis
did not have the opportunity to argue against revocation, and advocating
for 	sentence 	alternatives 	is 	part 	of 	the 	due 	process 	guaranteed 	to
probationers. 	See Black v. Romano, 471 U.S. 606, 614 (1985) (holding
that, where the factfinder has discretion to continue probation, procedural
due process requires that a probationer have an opportunity to present
mitigating evidence and argue for sentencing alternatives).
Accordingly, we reverse the order revoking Mathis’s probation and his
sentence, and we remand to the trial court for Mathis to be afforded an
opportunity to be heard on revocation and his sentence. Because violation
of special condition 8 was not proven by competent, substantial evidence,
it may not be considered on remand.
Affirmed in part, reversed in part, and remanded with instructions.
LEVINE and FORST , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.