UDELL SHIRLEY STEVENS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stevens appealed the revocation of his probation based on a judgment of conviction for a subsequent crime that was not yet affirmed on appeal. The court held that a judgment of conviction, though subject to appeal, is presumed correct and constitutes sufficient evidence of a probation violation, and need not be final on appeal to support revocation.
A judgment of conviction, presumed correct until reversed, is sufficient evidence of a probation violation and supports revocation of probation even though the conviction remains subject to appeal. A formal, final conviction is not essential; however, if the underlying conviction is subsequently reversed, the revocation must also be reversed.
[1] A revocation of probation may be based on a certified copy of a judgment of conviction for a subsequent crime, even if that conviction is still subject to appeal.
[2] A formal conviction of a crime is not essential to establish a violation of probation for committing a subsequent criminal act.
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“in a probation violation hearing the subsequent judgment of conviction is but evidence of the violation of the standard condition of probation that the probationer must "live and remain at liberty without violating any law."”
Establishes that a conviction in probation revocation is evidentiary, not jurisdictional, distinguishing it from other contexts requiring final convictions.
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Join FLexlaw to unlock all legal intelligenceStevens was on probation and was convicted of a subsequent crime. At the time the trial court revoked his probation based on a certified copy of the c…
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COWART, Judge.
This is an appeal from a revocation of probation based solely on a certified coy of a judgment of conviction of a subsequent crime. At the time of the revocation of probation the judgment of conviction had not been affirmed on appeal.1 Appellant claims the subsequent judgment of conviction was not final until affirmed on appeal and therefore was insufficient as the basis for revocation of probation, citing Ledee v. State, 342 So. 2d 100 (Fla.3d DCA 1977).
Ledee relied on Joyner v. State, 158 Fla. 806, 30 So. 2d 304 (1947), and State ex rel Volusia Jai-Alai, Inc. v. Board of Business Regulation of the Dept. of Business Regulation, 304 So. 2d 473 (Fla. 1st DCA 1974). In both Joyner and State ex rel Volusia Jai-Alia, a valid final conviction was a prerequisite to the validity of the subsequent order; however, in a probation violation hearing the subsequent judgment of conviction is but evidence of the violation of the standard condition of probation that the probationer must “live and remain at liberty without 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 rule2 is that a revocation of probation for a subsequent conviction is proper although the conviction is subject to appeal. Of course, if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed. Plummer v. State, 365 So. 2d 1102 (Fla. 1st DCA 1979).
For these reasons we decline to follow Ledee and recognize that this decision ex pressly and directly conflicts with it on the same question of law.3
The order revoking probation is
AFFIRMED.
ORFINGER and COBB, JJ., concur. . It was affirmed in Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980).
. Annot., 76 A.L.R.3d 588 (1977).
. Art. V, § 3(b)(3), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Udell Shirley Stevens, Jr. v. State, 409 So. 2d 1051 (Fla. 1982)…ALDERMAN, Justice. By holding that a judgment of conviction which is on appeal may serve as the basis for revocation of probation, the District Court of Appeal, Fifth District, in Stevens v. State, 397 So. 2d 398 (Fla. 5th DCA 1981), has created express and direct conflict with the Third District’s decision in Ledee v. State, 342 So. 2d 100 (Fla. 3d DCA 1977). We hold that the Fifth District’s holding in Stevens is correct, and we disapprove the Third Distri…
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Humbert v. State, 933 So. 2d 726 (Fla. 2d DCA 2006)…Nonetheless, “ ‘if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed.’ ” Stevens v. State, [*728] 409 So. 2d 1051, 1052 (Fla.1982) (quoting with approval Stevens v. State, 397 So. 2d 398, 398 (Fla. 5th DCA 1981)). In the record before this court, it is clear that the revocation of Humbert’s probation was based entirely on a conviction which has since been reversed. It is equally clear that the judge, at the revocation hearing, did n…
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Judd v. State, 402 So. 2d 1279 (Fla. 4th DCA 1981)…the defendants rather than convictions. The Fifth District Court of Appeal, however, states that “if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed.” Stevens v. State, 397 So. 2d 398 (Fla. 5th DCA 1981). In the instant case it is clear appellant’s revocation hinged upon his conviction at trial. Indeed, appellant stipulated that the trial was to act as his revocation hearing. Though it is true, as the State has noted by citing Ru…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Joyner v. State, 158 Fla. 806 (Fla. 1947)
- Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980)
- Udell Shirley Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980)
- Ozell Plummer v. State, 365 So. 2d 1102 (Fla. 1st DCA 1979)
- Thomas v. State, 350 So. 2d 568 (Fla. 3d DCA 1977)
- State of Fla. on the relation of Volusia Jai-Alai, Inc. v. Bd. OF Bus. Reg. OF the Dep't OF Bus. Reg. of the State of Fla., 304 So. 2d 473 (Fla. 1st DCA 1974)
- Ledee v. State, 342 So. 2d 100 (Fla. 3d DCA 1977)