STERLING SAMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sterling Sampson appealed the revocation of his probation. The court struck three of five alleged condition violations from the revocation order because they were either unfounded, improperly charged, or added without oral pronouncement, while affirming the technical violation of the reporting requirement based on the trial judge's clear statement that he would have imposed the same sentence regardless.
The court affirmed the probation revocation but struck findings for conditions (4), (7), and (11) because: condition (4) was added in the written order but not pronounced orally; condition (7) lacked proof of ability to pay; and condition (11) was not charged in the warrant. The violation of condition (2) was upheld despite being technical because the trial judge explicitly stated he would impose the same sentence regardless of which conditions were proven.
[1] A written order of probation revocation must conform to the trial court's oral pronouncement.
[2] Revocation of probation based on a violation of a condition requiring payment of fees is improper without proof of the probationer's ability to pay.
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Join FLexlaw to unlock all legal intelligence“The written order must conform to the court's oral pronouncement.”
Establishes the principle that findings in written revocation orders cannot exceed what was stated orally by the judge
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Join FLexlaw to unlock all legal intelligenceSampson was on probation subject to multiple conditions including monthly reporting, lawful conduct, compliance with supervisor instructions, and not …
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BOARDMAN, Judge.
Sterling Sampson appeals the revocation of his probation. The order of revocation recited findings of violations of conditions (2), requiring appellant to submit monthly reports; (4), requiring appellant to live at liberty without violating any law; (7), requiring appellant to comply with instructions of his probation supervisor; and (11), requiring that appellant not visit bars. The findings that appellant violated conditions (4), (7), and (11) must be stricken from the order. The trial court did not pronounce a finding of violation of condition (4), but added that finding in its written order. The written order must conform to the court’s oral pronouncement. Sing Eng v. State, 350 So. 2d 559 (Fla. 2d DCA 1977).
Violation of condition (7) was alleged because appellant did not comply with the supervisor’s instruction to pay $10 per month toward the public defender’s fee. There was no proof before the court to indicate whether appellant was able to pay the fee. Thus revocation on that ground was improper. Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979).
The warrant did not charge appellant with a violation of condition (11). Even had there been evidence that appellant had violated this condition, which there was not, his probation could not be revoked for a violation with which he was not charged. King v. State, 349 So. 2d 738 (Fla. 2d DCA 1977).
The finding of a violation of condition (2), not reporting, is supported by substantial, competent evidence but is a technical violation on which we would normally reverse and remand for reconsideration. Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976). In Tuff, we were “uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on that ground.” 338 So. 2d at 1336. Here, however, the trial judge made the following comment at the conclusion of the revocation hearing:
If he’s guilty of 2 and not 7 and 11 I would give him the same sentence. If he’s guilty of 7 and not 2 and 11 I would give him the same sentence. If he’s guilty of 11 and not 2 and 7 I would give him the same sentence.
This comment makes the trial judge’s position clear and obviates the necessity for remand under the Tuff rationale.
REMANDED for correction of the order of revocation of probation; otherwise AFFIRMED. Appellant need not be present for this purpose.
HOBSON, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (32 total)
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…file monthly reports is a substantial violation of probation sufficient by itself to support revocation of probation. Warren v. State, 499 So. 2d 55 [*1099] (Fla. 4th DCA 1987); Thomas v. State, 453 So. 2d 156 (Fla. 1st DCA 1984); Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979). Here, the evidence established that appellant failed to report to his probation officer as ordered. His probation officer testified that appellant filed late reports to her in September and October 1986, and that he filed no repo…
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…(Fla. 2d DCA 1978); Jones v. State, 348 So. 2d 942 (Fla. 2d DCA 1977); compare Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979) (unsupported probation violation not substantial in relation to other charges; remand not required); Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979) (trial court indicated that revocation and sentence based on each and every violation; remand not required). Reversed and remanded.…
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Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)…d support revocation on its own, but it is unclear whether trial judge would have revoked the probation or imposed the same sentence on the valid ground, cause was remanded for the lower court to make those determinations). But cf. Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979) (remand not required where the trial court indicated that revocation was based on each and every violation). In this case, the orders revoking Gavins’s community control in cases numbers 88-949 and 89-569 state as reason for revo…
Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)
- ENG v. State, 350 So. 2d 559 (Fla. 2d DCA 1977)
- Corsey v. State, 349 So. 2d 738 (Fla. 2d DCA 1977)
- King v. State, 349 So. 2d 738 (Fla. 2d DCA 1977)