NORMAN HICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probation revocation based on an affidavit naming only one count cannot stand as to a second, identical offense.
The trial court revoked probation as to a second count for an identical offense, despite the required affidavit only naming one count. The Public Defe…
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LETTS, Judge.
In a violation of probation proceeding the required affidavit setting forth the violation named only one count. Apparently not noticing this clerical oversight, the Judge revoked the probation as to a second count for an identical offense. The Public Defender appeals this latter revocation.1 We reverse in part.
We are tempted to label this harmless error, but as the State itself admits in its brief:
This fact arguably would not excuse the State for apparently not following a necessary procedure. Certainly, this Court should affirm the sentence as to Count I and ... a vacation of the sentence as to Count II should be done without prejudice so that the State may properly file a new affidavit.
So be it. The sentence as to Count II is hereby set aside without prejudice to the State to properly re-file its affidavit as to Count II.
REVERSED IN PART IN ACCORDANCE HEREWITH.
DOWNEY, C. J., and MOORE, J., concur. . Note: the State does not appeal the substance of the revocation proceedings as to probation violation.
Cases With Similar Vibessemantic neighbors from the corpus
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Pate v. State, 613 So. 2d 543 (Fla. 1st DCA 1993)…. 5th DCA 1990). Concerning the two remaining revocation sentences, we agree with appellant that it was error to revoke both probationary terms where the affidavit of violation only referenced one of the corresponding counts. As in Hicks v. State, 367 So. 2d 726 (Fla. 4th DCA 1979), we must set aside the revocation sentence imposed for the unreferenced count without prejudice to the state to properly re-file its affidavit as to this count. Because this represented appellant’s first violation of the probatio…
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Smith v. State, 637 So. 2d 84 (Fla. 5th DCA 1994)…third counts must be set aside. We do agree, however, with the state, that it should be given an opportunity on remand to properly refile its affidavit as to the uncharged counts. Pate v. State, 613 So. 2d 543 (Fla. 1st DCA 1993); Hicks v. State, 367 So. 2d 726 (Fla. 4th DCA 1979). Accordingly, we set aside the revocation sentence as to Count II and Count III without prejudice to the state to refile its affidavit as to these counts. REVERSED IN PART; REMANDED. DAUKSCH and GRIFFIN, JJ., concur.…
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Smith v. State, 673 So. 2d 133 (Fla. 5th DCA 1996)…d third counts must be set aside. We do agree, however, with the state, that it should be given an opportunity on remand to properly refile its affidavit as to the uncharged counts. Pate v. State, 613 So. 2d 543 (Fla. 1st DCA 1993); Hicks v. State, 367 So. 2d 726 (Fla. 4th DCA 1979). Accordingly, we set aside the revocation sentence as to Count II and Count III without prejudice to the state to refile its affidavit as to these counts. After remand, a hearing was conducted on August 26, 1994. The following o…