WILLIAM SCOTT EVANS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Scott Evans appeals the revocation of his probation based on findings of grand larceny and aiding and abetting, which he argues are not lesser included offenses to the alleged burglary charges. The court affirms, holding that although the findings technically do not constitute lesser included offenses, Evans received adequate notice of the larceny allegations through the probation violation affidavit and therefore suffered no due process violation.
Although grand larceny and aiding and abetting are not lesser included offenses of burglary, the probation revocation is affirmed because the probationer received adequate written notice through the affidavit that larceny would be the subject of proof at the revocation hearing, satisfying due process requirements.
[1] A probation revocation may be based on a lesser included offense not explicitly alleged in the affidavit of violation, provided the probationer received adequate notice o…
[2] Fundamental due process requires that revocation of probation be based only on violations alleged in the affidavit.
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Join FLexlaw to unlock all legal intelligence“fundamental due process requires that revocation of probation be based only on violations alleged”
Establishes the baseline due process requirement, from Cucco v. State
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Join FLexlaw to unlock all legal intelligenceEvans was on probation when an affidavit charged him with two counts of burglary: burglary of the Beach Club Hotel in Fort Lauderdale and burglary of …
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PER CURIAM.
Appellant, William Scott Evans, appeals from an order revoking probation. The affidavit of violation of probation charged two counts, i.e., burglary of the Beach Club Hotel in Fort Lauderdale and burglary of a souvenir shop located within the hotel. The trial court found appellant guilty of grand larceny as a ‘lesser included offense’ of the first burglary count and guilty of aiding and abetting as to the second count. Based on these findings, the court revoked appellant’s probation for possession of cocaine and sentenced him to three years imprisonment. For the reasons set forth below we affirm.
On this appeal, Evans claims, correctly, that neither grand larceny nor aiding and abetting are lesser included offenses to burglary. Thus, he contends his probation was improperly revoked on the basis of violations not alleged in the probation affidavit. To support his position, Evans cites Cucco v. State, 356 So. 2d 58 (Fla. 4th DCA 1978). In Cucco the defendant was charged with having violated his probation by committing grand larceny. The trial court revoked his probation upon a finding that he had engaged in the sale of stolen property. We reversed, holding that the sale of stolen property was not a lesser included offense to larceny. We noted that “fundamental due process requires that revocation of probation be based only on violations alleged .. . . ” 356 So. 2d 58, 59.
After Cucco, however, the Supreme Court rendered its decision in Hines v. State, 358 So. 2d 183 (Fla.1978). There the court held that an affidavit for violation of probation which merely charged a felony arrest was sufficient to support a revocation of probation because the probationer had adequate written notice of the felony upon which the revocation was based. The record in Hines indicated that the probationer had actual notice of the charges he faced, since he had been arrested near the scene of the crime and had made a confession. Thus, the court concluded that the failure of the probation revocation affidavit to specifically list the felony conviction charging Hines was harmless error. We believe the same rationale applies in the case at bar. Appellant knew from the affidavit of probation violation that proof of a larceny would be adduced at the probation revocation hearing. The affidavit in question charged Evans, in both counts, with “unlawfully entering] and re-mainpng] in a structure . . . with the intent to commit the offense of larceny therein.” Consequently, Evans was not denied due process notice as to the facts and circumstances the trial judge would consider to determine whether probation should be revoked. See also Norris v. State, 383 So. 2d 691 (Fla. 4th DCA) petition for review denied, 388 So. 2d 1116 (Fla.1980).
AFFIRMED.
ANSTEAD, BERANEK and HURLEY, JJ., concur.
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Myles Franklin Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997)…rsed. Appellant was not charged with being an accessory after the fact. While under [*1141] certain circumstances a probationer may be charged with violating one crime and have his probation revoked for violating another, see, e.g., Evans v. State, 409 So. 2d 1078 (Fla. 4th DCA 1981), probationers are entitled to notice “of what law the probationer is alleged to have violated.” Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995). In this case, the affidavit recited no factual basis for its conclusion th…
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N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002)…4 So. 2d 276, 277 (Fla. 4th DCA 1994) (affirming appellant’s revocation of probation where the affidavit of violation alleged that he resisted arrest with violence, but he was actually convicted of resisting arrest without violence); Evans v. State, 409 So. 2d 1078, 1079 (Fla. 4th DCA 1981) (affirming an appellant’s revocation of probation where the affidavit charged him with two counts of burglary, but he was actually found guilty by a jury of grand larceny and aiding and abetting); see also Hines v. State, 3…
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Freiheit v. State, 458 So. 2d 1172 (Fla. 4th DCA 1984)…ditional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.” 358 So. 2d at 185, footnote omitted. This court has relied upon the Hines holding in Evans v. State, 409 So. 2d 1078 (Fla. 4th DCA 1981), and Norris v. State, 383 So. 2d 691 (Fla. 4th DCA 1980). In Evans probation was revoked based upon the charge of burglary, whereas the court found the probationer guilty of grand larceny and aiding and abetting. Though the subst…
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
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Norris v. State, 383 So. 2d 691 (Fla. 4th DCA 1980)
- Carmine Martucci v. Ames Bennett, 356 So. 2d 58 (Fla. 4th DCA 1978)