JOHN M. LAVAZZOLI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a probation revocation and remanded for a suppression hearing on drug and firearm charges, finding the trial court erred by refusing to entertain defendant's timely suppression motion. Although one technical violation (leaving the county without permission) independently supported revocation, the court determined the suppression-dependent charges were the primary basis for punishment and remand was necessary.
The trial court erred by refusing to entertain the suppression motion. The case is reversed and remanded for a suppression hearing because the drug and firearm charges appear to have been the primary basis for revocation, even though the remaining technical violation of leaving the county is independently sufficient. Upon remand, if the suppression motion is denied, revocation can be reinstated; if granted, the trial court may still revoke based on the remaining violation but must resentence in compliance with Villery v. Florida Parole and Probation Commission.
[1] A trial court errs by refusing to entertain a timely motion to suppress evidence.
[2] A technical violation of probation, such as leaving the county of residence without consent, can be sufficient grounds for revocation.
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 trial court found the defendant guilty of four separate violations of the conditions of his probation, but erroneously refused to entertain a timely motion to suppress evidence relating to three of the charged violations.”
Establishes the core error: trial court's refusal to hear the suppression motion regarding the drug and firearm charges.
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Join FLexlaw to unlock all legal intelligenceLavazzoli was found guilty of four separate probation violations: possessing cocaine, carrying a concealed firearm, possessing a firearm as a convicte…
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PER CURIAM.
The trial court found the defendant guilty of four separate violations of the conditions of his probation, but erroneously refused to entertain a timely motion to suppress evidence relating to three of the charged violations. Grubbs v. State, 373 So. 2d 905 (Fla.1979); Nealy v. State, 400 So. 2d 95 (Fla.3d DCA 1981); Huppertz v. State, 399 So. 2d 992 (Fla.3d DCA 1981); State v. Dodd, 396 So. 2d 1205 (Fla.3d DCA 1981).
The remaining violation involved the act of leaving the county of residence without first obtaining the consent of the probation office. This violation will be unaffected by any future ruling of the trial court on the defendant’s motion to suppress. Moreover, this violation, while technical in nature, is sufficient for revocation. Cf. Aaron v. State, 400 So. 2d 1033 (Fla.3d DCA 1981) (failure to notify probation officer of change in employment and failure to file monthly reports); Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979) (failure to file monthly reports); Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978) (failure to file monthly reports); Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969) (failure to file monthly reports).
However, since it appears from the record that the trial court’s primary reasons for revoking the defendant’s probation were the charges that the defendant possessed cocaine, carried a concealed firearm, and possessed a firearm while a convicted felon, all of which will stand or fall depending on the outcome of the suppression hearing, and since it is likely that these violations were the substantial reason for the punishment imposed on the defendant, a remand for a suppression hearing is in order. If, after hearing, the defendant’s motion to suppress is denied, the revocation presumably will be reinstated. If the motion to suppress is granted, the trial court must then determine whether it will revoke, which it is free to do, the defendant’s probation for the remaining violation of leaving the county without permission. See Aaron v. State, supra; Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980). In the event upon remand revocation results, the defendant, who has on this appeal accurately asserted that his sentence of incarceration for three years as a special condition of probation violates Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981), and has asked for relief, must be resentenced in a manner which does not offend Villery.
Reversed and remanded with directions to proceed consistent with the views expressed herein.
PER CURIAM.
We grant the State’s petition for rehearing and supplement our earlier opinion to add the following paragraph:
“Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), we certify that this decision is in direct conflict with Latham v. State, 360 So. 2d 127 (Fla. 1st DCA 1978), and Shipp v. State, 349 So. 2d 690 (Fla. 4th DCA 1977).”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983)…that respondent had violated probation. The court extended the original term of probation by one year and imposed a special condition of probation that respondent be incarcerated for a period of three years. Respondent appealed. Lavazzoli v. State, 408 So. 2d 583 (Fla. 3d DCA 1982). The Third District Court of Appeal concluded that the trial court erred in refusing to consider respondent’s motion to suppress. That court additionally noted that one of the grounds for revocation was valid, independent of the m…
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Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983)…ate of $30 a month. It is undisputed that the appellant left the county without the consent of his supervising probation officer. While this violation is technical in nature, it is sufficient to support revocation of probation. Lavazzoli v. State, 408 So. 2d 583, 584 (Fla. 3d DCA 1981), approved, 434 So. 2d 321 (Fla. 1983). It is also clear that the defendant failed to file any written report for two months. This is a substantial violation of the conditions of probation. Chappell v. State, 429 So. 2d 84 (Fl…
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Wilson v. State, 678 So. 2d 12 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. See Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995); Wearen v. State, 570 So. 2d 1081 (Fla. 3d DCA 1990); Lavazzoli v. State, 408 So. 2d 583 (Fla. 3d. DCA 1981), approved by 434 So. 2d 321 (Fla.1983).…
Authorities Cited (13 total)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Grubbs v. State, 373 So. 2d 905 (Fla. 1979)
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- State v. Dodd, 396 So. 2d 1205 (Fla. 3d DCA 1981)
- Aaron v. State, 400 So. 2d 1033 (Fla. 3d DCA 1981)
- Shipp v. State, 349 So. 2d 690 (Fla. 4th DCA 1977)
- Nicolaas Mathias Huppertz v. State, 399 So. 2d 992 (Fla. 3d DCA 1981)