JOSEPH A. BARTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this probation revocation and sentencing appeal, the Florida District Court of Appeal affirmed the revocation of Barton's probation but remanded for correction of the revocation orders to remove findings of dismissed violations and for resentencing on one case where the trial court imposed an enhanced sentence as a habitual offender without making the required finding that the sentence was necessary to protect the public.
The revocation of probation is affirmed, but the orders must be corrected to delete the findings on the two dismissed violations. The sentence imposed as a habitual offender in case number 79-2003 is set aside and the matter is remanded for resentencing because the trial court failed to make or state the required finding regarding public protection.
[1] A trial court's order of revocation must accurately reflect the violations found to have occurred at the revocation hearing.
[2] A trial court must make a finding that an habitual offender sentence is necessary to protect the public from further criminal activity.
Previewing 2 of 3 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 finding of violations of these conditions should be deleted from the orders of revocation to conform them to the findings made at the hearing.”
Establishes that written revocation orders must match the findings actually made at the probation revocation hearing
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Join FLexlaw to unlock all legal intelligenceBarton pleaded guilty to two counts of grand theft and was placed on probation. He was subsequently charged with numerous probation violations. At the…
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HOBSON, Acting Chief Judge.
The revocation of appellant’s probation is affirmed. However, we remand for correction of the orders of revocation and for resentencing.
The appellant pleaded guilty to two charges of grand theft and was placed on probation on both charges. Affidavits of violation of probation subsequently charged the appellant with numerous violations. At the hearing the court dismissed the contentions that appellant had failed to pay the costs of supervision and had used PCP but revoked his probation on several other grounds. Nevertheless, the trial court’s orders of revocation include the two allegations of violations which were dismissed. The finding of violations of these conditions should be deleted from the orders of revocation to conform them to the findings made at the hearing. Brouillett v. State, 373 So. 2d 499 (Fla. 2d DCA 1980); Langston v. State, 371 So. 2d 202 (Fla. 2d DCA 1979).
In case number 79-2003, we also find that the trial court erred in sentencing the appellant to ten years as an habitual offender absent a finding that such sentence was necessary to protect the public from further criminal activity. Section 774.084(4)(a), Florida Statutes (1979), provides that, under certain circumstances, the court may enhance a defendant’s sentence. However, the trial court is required to find that the imposition of such a sentence is necessary for the public’s protection. Ibbitson v. State, 366 So. 2d 499 (Fla. 2d DCA 1979). While this finding need not be included in the trial court’s order, the court’s oral finding and its reasons, or the evidence supporting this finding, must appear in the transcript of the hearing. Eutesy v. State, 383 So. 2d 219 (Fla.1980); Chuckes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976). Here the trial court’s order which contains appellant’s sentence does not include the required finding. In addition, a review of the transcript provided reveals the court failed to orally address the question.
Therefore, we affirm both of appellant’s convictions and his sentence in case number 79-2004 but set aside his sentence in case number 79-2003 and remand for resentencing. Violation numbers two and five shall be stricken from the orders revoking probation.
GRIMES and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976)
- Fredrick Ira Ibbitson v. State, 366 So. 2d 499 (Fla. 2d DCA 1979)
- Langston v. State, 371 So. 2d 202 (Fla. 2d DCA 1979)