OWEN CALLOWAY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Calloway appeals his jury conviction for disorderly intoxication and resisting arrest with violence, and the trial court's revocation of his probation. The court affirms the convictions but reverses the probation revocation because the revocation proceeding failed to meet essential constitutional and statutory requirements.
The convictions are affirmed as supported by sufficient evidence. The prosecution's alleged improper remarks are not properly preserved for appeal due to untimely objection. The probation revocation is reversed because the trial court failed to comply with constitutional and statutory requirements for a final revocation proceeding.
[1] A defendant's failure to move for a mistrial at the time of an allegedly improper prosecutorial comment renders the objection untimely and unpreserved for appeal.
[2] A trial court must provide a defendant with an opportunity to be heard before revoking probation.
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Join FLexlaw to unlock all legal intelligence“The essential elements necessary in a final revocation proceeding were not met in this case.”
The court's holding that the probation revocation was procedurally deficient and violated statutory requirements.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted after jury trial of disorderly intoxication and resisting arrest with violence. He had been on probation since April 24, 1978,…
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PER CURIAM.
Appellant appeals his conviction after trial by jury of disorderly intoxication and resisting arrest with violence and the trial court’s revocation of his probation. We affirm in part and reverse in part.
In his first point on appeal, appellant contends that the evidence was insufficient to support his convictions for disorderly intoxication and resisting arrest with violence. However, we find that the record contains sufficient evidence to support the jury’s conclusions, and we affirm as to that point.
In another point, appellant contends that certain remarks made by the prosecutor in closing argument violated his right to a fair and impartial trial. However, appellant did not move for a mistrial when the allegedly improper comment was made but, instead, waited until after retirement of the jury to make that motion. The motion was untimely, and, therefore, the objection was not properly preserved for appeal. See State v. Cumbie, 380 So. 2d 1031 (Fla.1980), and Clark v. State, 363 So. 2d 331 (Fla.1978).
Appellant’s remaining point on appeal does have merit.
The record shows that on April 18, 1980, an affidavit for violation of probation was filed stating that appellant was in violation because he had failed to comply with Condition II of an order of probation entered on April 24, 1978, requiring that he pay the amount of $10 per month toward his supervision. An amended judgment in the record carrying the same case number as the original order of probation shows that on August 18, 1980, appellant’s probation was revoked, and sentence was entered on his 1978 plea of guilty to battery on a police officer. The only other mention of probation violation in the record is contained at the end of the sentencing hearing for the sentence imposed in the instant case. In that transcript, the court states merely that probation was violated and is revoked and appellant is, therefore, sentenced to five years to run concurrently with the sentence for the current convictions. No further elaboration was made. The court did not state on what basis it was revoking the probation, and it did not give appellant an opportunity to be heard.
The record does not show that any evidence was presented in support of the affidavit charging probation violation. Although, on that date, an assistant public defender was representing appellant for the sentencing in the current case, the record does not show that the public defender was representing appellant on the probation revocation charge also. The essential elements necessary in a final revocation proceeding were not met in this case. § 948.-06, Fla.Stat. Also, compare Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Therefore, we reverse the probation revocation and the judgment and sentence based thereon.
Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.
McCORD, ERVIN and SHAW, JJ., concur.
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Cited By
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Cole v. State, 866 So. 2d 761 (Fla. 1st DCA 2004)…e, 466 So. 2d 293, 295 (Fla. 3d DCA 1985) (holding that the issue of whether the trial court erred in denying mistrial was not preserved when counsel did not move for a mistrial until after the jury had retired for deliberations); Calloway v. State, 409 So. 2d 1142, 1143 (Fla. 1st DCA 1982) (same). Therefore, unlike DuBoise, Jones,, and Calloway, because appellant’s counsel moved for mistrial before the jury retired for deliberations and at the first possible moment following the prosecution’s closing argument…
Authorities Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- State v. Cumbie, 380 So. 2d 1031 (Fla. 1980)