UDELL SHIRLEY STEVENS, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a judgment of conviction pending appeal may serve as the basis for probation revocation, resolving a conflict between District Courts of Appeal. The Court approved the Fifth District's reasoning that a conviction is presumed correct until reversed and need not be final to support revocation.
A judgment of conviction pending appeal may serve as the basis for probation revocation. A conviction need not be final to support revocation because a judgment is presumed correct until reversed on appeal. However, if the underlying conviction is subsequently reversed, the revocation must also be reversed.
[1] A judgment of conviction on appeal may serve as the basis for revocation of probation.
[2] A revocation of probation based solely on a conviction must be reversed if that conviction is subsequently reversed.
Previewing 2 of 4 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 serves as evidence of probation violation rather than requiring finality
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Join FLexlaw to unlock all legal intelligenceStevens was on probation with a condition requiring him to live and remain at liberty without violating any law. He entered a nolo contendere plea (re…
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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 District’s holding in Ledee.
Stevens’ probation was revoked on the basis that he had violated a condition of his probation which required that he live and remain at liberty without violating any law. Upon his plea of nolo contendere reserving his right to appeal certain motions, he was convicted of possession of a firearm by a convicted felon.1 The revocation of his probation was based solely on a certified copy of a judgment of conviction of this possession charge. Upon appeal to the Fifth District he argued that the judgment must be final in order to serve as a basis for probation revocation and is not final until affirmed on appeal.
The Fifth District disagreed and reasoned:
[I]n 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 with 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 rule 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).
397 So. 2d at 398 (footnote omitted).
We approve the Fifth District’s decision in the present case, and we disapprove the Third District’s decision in Ledee.
It is so ordered.
SUNDBERG, C. J., and ADKINS, BOYD and McDONALD, JJ., concur. . This conviction was subsequently affirmed. Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980).
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Citator
Cited By (18 total)
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…the judgment of conviction for DUI was read into the record. This was sufficient to support a finding that appellant had violated condition (5) of his probation, which required him to “remain at liberty without violating the law.” Stevens v. State, 409 So. 2d 1051 (Fla.1982). Appellant contends that because he pled nolo contendere to the offense and the judgment of conviction was not entered until after the expiration of his probationary term, this offense could not be used to revoke his probation. However, t…
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State v. Degrossi, 680 So. 2d 1093 (Fla. 3d DCA 1996)…der these circumstances and neither annuls nor wipes out the fact that a determination of guilt has been made, and hence a “conviction” has been entered for purposes of the statute. See State v. Peterson, 667 So. 2d 199 (Fla.1996); Stevens v. State, 409 So. 2d 1051 (Fla.1982). It follows that the Department’s duty is triggered upon the initial ascertainment of guilt, regardless of the fact that an appeal is sought thereafter. See Brown v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 389 Mass.…
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Burkett v. State, 518 So. 2d 1363 (Fla. 1st DCA 1988)…penalties under the habitual offender statute until it is final, and that if an appeal has been taken, the conviction does not become final until the judgment of the lower court has been affirmed by the appellate court. However, in Stevens v. State, 409 So. 2d 1051 (Fla.1982), the court disapproved the holding in Ledee v. State, 342 So. 2d 100 (Fla. 3d DCA 1977), in which the Third District Court of Appeal had relied on Joyner in finding that a probation revocation could not be based on a conviction which was…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Udell Shirley Stevens, Jr. v. State, 397 So. 2d 398 (Fla. 5th DCA 1981)
- Ledee v. State, 342 So. 2d 100 (Fla. 3d DCA 1977)