CLARENCE J. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Williams appealed the revocation of his probation, arguing that the trial court improperly relied on violations occurring after his probationary period expired and on unsubstantiated restitution payment failures. The court found that only the single allegation of failing to file a February 1979 monthly report was properly proven and remanded for a new hearing to determine whether the trial court based revocation solely on that valid violation.
The revocation was improper insofar as it was based on criminal acts occurring after the probationary period ended and on unsubstantiated restitution and supervision payment failures. The only properly proven violation was the failure to submit a monthly report for February 1979. The cause is remanded to determine whether the trial court based revocation solely on this valid violation.
[1] A trial court may revoke probation based on competent evidence of a violation of a condition of probation, even if that evidence is hearsay.
[2] A trial court cannot revoke probation for failure to make restitution or pay supervision charges without an affirmative finding that the probationer has the financial abi…
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Join FLexlaw to unlock all legal intelligence“The criminal acts which the defendant was alleged to have committed occurred after his probationary period had expired. Therefore, it was improper to revoke probation based on those allegations.”
Establishes that the court cannot revoke probation based on conduct occurring after the probationary period ends.
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Join FLexlaw to unlock all legal intelligenceIn June 1975, Williams was placed on probation for five years after pleading guilty to breaking and entering. An Affidavit of Violation was filed in M…
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PER CURIAM.
In June, 1975 appellant was placed on probation for five years after pleading guilty to a charge of breaking and entering. On March 21,1979 an Affidavit of Violation of Probation was filed which alleged that appellant had failed to file a monthly report for February 1979, had failed to make restitution payments as required, and had failed to pay costs of supervision. However, no action was taken on the Affidavit until after the probationary period had ended. On January 14, 1981 an “amended” Affidavit of Violation of Probation was filed which re-alleged the 1979 violations. The amended affidavit also contained allegations regarding criminal charges that had been filed against appellant for acts occurring in August 1980. After a hearing, appellant’s probation was revoked and he was sentenced to five years in prison on the 1975 breaking and entering charge. The judge issued no written findings on which he based his opinion. He merely stated at the revocation hearing that he found that the defendant had violated the terms of his probation.
The criminal acts which the defendant was alleged to have committed occurred after his probationary period had expired. Therefore, it was improper to revoke probation based on those allegations. Jess v. State, 384 So. 2d 328 (Fla. 3rd DCA 1980). In addition, it was not proper to revoke appellant’s probation on the basis of the 1979 allegations that he failed to make restitution and cost of supervision payments. This is so because the record is void of any evidence showing that the defendant was able to make the payments. Peterson v. State, 384 So. 2d 965 (Fla. 1st DCA 1980). Therefore, the judge should not have based the revocation order on the failure to make restitution and supervision payments, or the 1980 criminal acts.
The only remaining allegation of probation violation was the failure to submit a monthly report for the month of February, 1979. This allegation was proved through the testimony of a probation officer who was custodian of appellant’s file. He testified that there were no monthly reports in the file dated after January 31, 1979. This testimony was admissible under § 90.803(7) Fla.Stat. (1979), and was sufficient to prove the charge that appellant had not submitted a report for the month of February, 1979.
Because we cannot determine from the record whether the trial court considered the improperly alleged violations, the cause is remanded for further proceedings consistent with this opinion.
SHAW, JOANOS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…tion cannot be revoked based on the failure to pay court costs. Kennedy v. State, 460 So. 2d 590 (Fla. 2d DCA 1984). See also Neves v. State, 502 So. 2d 1343 (Fla. 2d DCA 1987); Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983); Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981). In the case at bar, the only evidence presented regarding appellant’s ability to pay was his probation officer’s statement that she believed appellant was working several months during his probation and that she felt “he was abl…
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Garcia v. State, 564 So. 2d 124 (Fla. 1990)…of section 90.803(7) of the Florida Statutes (1981), which expressly provides for the admissibility as substantive evidence of assertions implied from the absence of an entry in the records of a regularly conducted activity.4 See Williams v. State, 406 So. 2d 86, 87 (Fla. 1st DCA 1981) (probation violation proved from absence of defendant’s regular monthly reports). That section allows the admissibility of [e]vidence that a matter is not included in the memoranda, reports, records, or data compilations, in…
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Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985)…jurisdiction to entertain the amended affidavit filed in 1984 which included a violation which occurred after his probation had expired. The decisions relied upon by appellant, Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980) and Williams v. State, 406 So. 2d 86 (Fla. 1st DCA 1981) are not controlling as they are distinguishable from the case under consideration. In neither of those cases had the defendant “absconded from supervision.” The question to be decided is whether, under the circumstances of this…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Peterson v. State, 384 So. 2d 965 (Fla. 1st DCA 1980)