MARVIN LEE HOLT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Marvin Lee Holt challenged the revocation of his probation by the Circuit Court for Seminole County. The Florida Fifth District Court of Appeal affirmed the revocation, finding sufficient evidence of probation violations and rejecting appellant's claim that he was improperly sentenced without credit for time served.
The court affirmed the revocation of probation, finding the State met its burden of showing a probation violation. The court also rejected Holt's claim that he was not credited for time served, as the record clearly reflected the trial judge announced credit for 192 days of time already served, including time served under probation.
[1] A court abuses its discretion on appeal of a probation revocation only if the record demonstrates such abuse.
[2] The State bears the burden of proving a probationer's ability to make required payments.
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Join FLexlaw to unlock all legal intelligence“On appeal of a probation revocation, the only question is whether the court abused its discretion.”
Establishes the standard of review for probation revocation appeals.
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Join FLexlaw to unlock all legal intelligenceHolt was placed on probation for five years on November 15, 1977. On February 13, 1979, he was charged with violating his probation by committing a bu…
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motion and brief, representing to this court that no reversible error appears and requesting leave to withdraw as counsel. This court granted appellant thirty days to file a brief in his own behalf. Appellant has written to this court contending that he was mistakenly sentenced again without credit for time served.
On November 15, 1977, appellant was placed on probation for a term of five years. On February 13, 1979, he was charged with violation of his probation by committing a burglary and failing to pay the costs of his probation.
On appeal of a probation revocation, the only question is whether the court abused its discretion. Bernhardt v. State, 288 So. 2d 490 (Fla.1974). The burden is on the State to show that a probationer was able to make such payments as may have been required by the judgment. See Murrell v. State, 364 So. 2d 96 (Fla. 4th DCA 1978). Testimony was received reflecting that appellant had several jobs, and had offered to pay the entire amount after he was charged with the probation violations. His probation officer testified that based upon appellant’s income and expenses, he had the ability to pay the supervision costs. As to the other violation, an eyewitness testified that appellant entered her home and attempted to take her purse. This testimony established the elements of burglary and was sufficient to show a violation of the probation requirement “to live and remain at liberty without violating any law.” A formal conviction of a crime is not essential before probation can be revoked. Bernhardt v. State at 501.
Appellant is mistaken as to the failure of the court to consider the time served in the sentence. The record reflects that the trial judge announced that appellant was sentenced to five years with credit for the time already served, including the time served under the order of probation. The judgment and sentence reflects 192 days credit for time served was included. There is no error. AFFIRMED.
COBB and SHARP, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)…payments. Thus, there is no evidence at all to show that appellant had the ability to make the delinquent payments, and evidence of such ability to essential to support a revocation of probation for failure to make required payments. Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980), Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979). The burden is upon the State to show that the probationer was able to make such payments as may have been required by the judgment. Holt, at 1134. The order finding that appel…
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Udell Shirley Stevens, Jr. v. State, 409 So. 2d 1051 (Fla. 1982)…judgment of conviction is but evidence of the violation of the standard condition of probation that the probationer must “live and remain at liberty with [*1052] out violating any law.” A formal conviction of a crime is not essential, Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980), and even a plea of guilty to a subsequent criminal act has been held sufficient. Thomas v. State, 350 So. 2d 568 (Fla. 3d DCA 1977). Since a judgment of conviction is presumed to be correct until reversed, the better and general…
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Molina v. State, 520 So. 2d 320 (Fla. 2d DCA 1988)…him to seven years in prison with credit for time served. Following the denial of his motion for mitigation, Molina filed this appeal. The standard of review on a probation revocation is whether the trial court abused its discretion. Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980); Monda Parole and Probation Commission v. Helton, 313 So. 2d 413 (Fla. 1st DCA 1975). We have previously held that any violation triggering a revocation of probation must be willful, and that the greater weight of the evidence mu…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Keelan T. Murrell v. State, 364 So. 2d 96 (Fla. 4th DCA 1978)