Background
Christopher Mc Taw pleaded guilty in 2011 to six sex offenses and was sentenced as a habitual felony offender. His plea agreement included forty-one mandatory probation conditions, including a curfew from 10:00 p.m. to 6:00 a.m. In December 2023, his probation officer alleged that he violated the curfew.
At the violation hearing, the probation officer discussed two earlier violation affidavits that had been withdrawn. The trial court overruled Mc Taw’s objection, found the curfew violation willful and substantial, and determined that he posed a danger to the community under the statute governing violent felony offenders of special concern. The court sentenced him to twenty-five years in prison followed by five years of reporting probation with GPS monitoring.
The Court’s Holding
The Third District affirmed the revocation of probation but reversed the sentence. It held that the trial court violated Mc Taw’s due-process rights by relying on the two withdrawn violation affidavits when finding him dangerous and imposing sentence.
Although a sentencing court may consider the circumstances of the underlying offense and a defendant’s prior record, it may not rely on subsequent misconduct or pending or dismissed charges. Because the trial court expressly cited the withdrawn affidavits in concluding that Mc Taw was dangerous and not amenable to non-incarcerative sanctions, resentencing was required before a different judge.
Key Takeaways
- The finding that Mc Taw willfully and substantially violated his probation remained intact.
- Withdrawn probation-violation allegations were constitutionally impermissible sentencing considerations.
- Express reliance on those allegations required resentencing before a different judge.
Why It Matters
The decision reinforces that sentencing courts must distinguish between permissible criminal-history information and allegations that were withdrawn, dismissed, or never adjudicated. Even when a probation revocation is valid, reliance on impermissible allegations in assessing dangerousness or selecting a sentence can require reversal.