BENNIE JESS, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Bennie Jess appeals his conviction and five-year sentence for uttering a forged instrument following probation revocation. The court found that while one basis for revocation (a burglary committed after probation expired) was improper, the other basis (failure to file timely reports) was valid and supported remand for the trial court to determine whether it would have revoked probation and imposed the same sentence based solely on the reporting violations.
The court held that the burglary could not serve as a basis for probation revocation because it occurred after the probation term had expired. However, the reporting violations were properly alleged and supported revocation. The court reversed and remanded to allow the trial judge to determine whether probation would have been revoked and whether the same sentence would have been imposed based solely on the valid reporting violations.
[1] A probation revocation based on an offense committed after the expiration of the probationary term is improper.
[2] A timely filed affidavit alleging probation violations remains effective for revocation purposes even if a later, untimely affidavit containing similar allegations is als…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the burglary was not a proper basis for revocation because it was committed on May 19,1978, after Jess's term of probation had already expired on December 12, 1977”
Establishes that conduct occurring after probation expires cannot support revocation
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJess was convicted of uttering a forged instrument and received a maximum five-year sentence following revocation of his probation. The trial judge fo…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Violation Of Probation cases and more on FLexlaw
SCHWARTZ, Judge.
Jess appeals from his conviction and maximum five-year sentence for uttering a forged instrument, which followed a revocation of probation. The trial judge found the defendant guilty of two separate violations of the conditions of probation: (a) the commission of a burglary and (b) the failure to file timely reports. As the state concedes, the burglary was not a proper basis for revocation because it was committed on May 19,1978, after Jess’s term of probation had already expired on December 12, 1977. Curry v. State, 362 So. 2d 36 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); § 948.06(1), Fla.Stat. (1979).
The allegation that the defendant had violated the condition of probation requiring the submission of monthly reports was made in an affidavit which was never withdrawn by the state and which had been filed on December 9, 1977, shortly before the end of the probationary period. Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980); Maycock v. State, 281 So. 2d 64 (Fla. 3d DCA 1973).
Contrary to the appellant’s contention, we regard as irrelevant the fact that the identical allegation was also contained in an affidavit which was untimely filed on September 18, 1978, and which included the burglary charge. Cf. Carpenter v. State, 355 So. 2d 492 (Fla. 3d DCA 1978).
The defendant’s reliance upon the trial court’s statement at the revocation hearing that it was proceeding under the latter affidavit is misplaced. Obviously, that comment did not affect the court’s jurisdiction to revoke probation based upon the timely filed and still-effective affidavit of December 9,1977. Compare Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971) (prior information vitiated by filing of amended information restating alleged offense); State v. O’Neal, 174 So. 2d 564 (Fla. 2d DCA 1965) (prosecution under original information formally discontinued).
Since there is ample evidence that Jess in fact committed the misnamed “technical” violations, the revocation may be supported on that basis alone. Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978); Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969).
We do not know, however, whether the trial judge would have revoked the probation or imposed the same sentence on just that ground, without consideration of the burglary. We therefore think it appropriate to remand the cause so that the lower court may now make those determinations. Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976); see McKeever v. State, 359 So. 2d 905 (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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
-
Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)…mended affidavit merely realleged the three timely-filed original charges, we hold that the court did have jurisdiction to determine whether appellant violated his probation by committing any of the acts specified in those counts. See Jess v. State, 384 So. 2d 328 (Fla.3d DCA 1980). Accordingly, we turn to the record to determine whether the trial court’s findings have support. Testimony revealed that on August 22, 1979, a search warrant was executed at 612 N.W. 8th Avenue, Hallandale, Florida. This address…
-
Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)…sed solely on that violation. Therefore, the second district reversed the order of revocation and remanded the cause to permit the trial court to consider whether the violation of the remaining condition warranted revocation. See also Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980) (where trial court revoked the defendant’s probation based on violation of two separate conditions of probation, one of which was improper and the other would support revocation on its own, but it is unclear whether trial judge wo…
-
Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992)…the most technical violation of the terms of probation would justify its revocation. See Little v. State, 519 So. 2d 1139 (Fla. 2d DCA 1988), review denied, 528 So. 2d 1182 (Fla.1988); May v. State, 472 So. 2d 890 (Fla. 4th DCA 1985); Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980). It is required, however, that any such deviation be the product of a knowing and willful act by the probationer. Since there was no such evidence below, the order, judgment and sentence under review are reversed and the cause rem…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Sterling Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)
- Wilcox v. State, 248 So. 2d 692 (Fla. 4th DCA 1971)
- Magnolia Green v. State, 348 So. 2d 942 (Fla. 2d DCA 1977)
- Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979)
- Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977)
- White v. State, 355 So. 2d 492 (Fla. 3d DCA 1978)