REGINALD ROBINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Reginald Robinson appeals the denial of his motion to dismiss probation violation charges. The trial court received a letter from Robinson's probation officer two days before his probation expired, which the court later used to initiate violation proceedings. Robinson challenges this procedure, but the appellate court affirms, finding that the letter constituted timely notice to commence proceedings and that Robinson received adequate due process.
The court affirmed, holding that the letter was properly filed and recorded in Robinson's court file prior to expiration of his probationary term and constituted valid initiation of modification proceedings. Robinson waived his objection to this procedure by not raising it at trial, and even if error, it did not constitute fundamental error depriving him of due process, as he received notice of violations and a fair hearing.
[1] Revocation or modification of probation must be initiated before the expiration of the probationary term.
[2] A letter from a probation officer to the trial judge, filed and recorded in the court file, can serve as the initiation of probation violation proceedings.
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Join FLexlaw to unlock all legal intelligence“Revocation or modification of probation proceedings must be set in motion prior to the end of the period of probation.”
Establishes the legal requirement that violation proceedings must be initiated before the probationary period expires, which was satisfied here.
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Join FLexlaw to unlock all legal intelligenceRobinson pled guilty to two counts of uttering a forged instrument and one count of grand theft, receiving six months' concurrent probation with a req…
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OTT, Chief Judge.
Appellant challenges the denial of his motion to dismiss. We affirm.
Appellant pled guilty to two counts of uttering a forged instrument and one count of grand theft. On July 22, 1982, he was placed on probation for a period of six months for each count, to run concurrently. As a special condition of probation, he was ordered to pay restitution.
On January 20, 1983, two days before probation was to expire, the trial judge received a letter from appellant’s probation officer advising of appellant’s failure to pay restitution. Without notice to appellant or a hearing, the judge entered an order extending the probationary term for an additional six months. Restitution continued to be a condition of probation.
On March 7, 1983, appellant’s probation officer filed an affidavit charging that appellant had violated probation in three respects: (1) he had not filed monthly reports for November and December, 1982, and January, 1983, as ordered by condition one; (2) he was $40 in arrears on his $10 per month cost of supervision imposed by condition two; and (3) he had failed to pay $30 toward restitution as instructed by the probation officer on January 25, 1983.
Appellant was arrested pursuant to a warrant and a hearing was scheduled. Counsel for appellant filed a motion to dismiss, alleging that the trial court’s order extending probation was void because appellant did not receive notice and a hearing. The trial court agreed and set aside the order, but ruled that the January 20, 1983, letter served to initiate violation proceedings prior to the expiration of the probationary term. The court proceeded with the hearing, found appellant guilty of violating probation, and extended probation until December 1, 1983. Appellant’s counsel did not object to proceeding in this manner. Revocation or modification of probation proceedings must be set in motion prior to the end of the period of probation. Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978); Carpenter v. State, 355 So. 2d 492 (Fla. 3d DCA 1978). The letter was filed and recorded in appellant’s court file on January 20, 1983, prior to the expiration of his probationary term.
Appellant’s attorney did not object to the court’s use of the letter as the initiator of modification proceedings. Unless this constituted fundamental error, appellant cannot object for the first time on appeal. See Clark v. State, 363 So. 2d 331 (Fla.1978).
“Fundamental error” is error which goes to the foundation of the case or goes to the merits of the cause of action. Even constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court. Id., 363 So. 2d at 333. Fundamental error is error amounting to a denial of due process. Ray v. State, 403 So. 2d 956 (Fla.1981).
Probation is a matter of grace rather than right. The trial judge has broad discretionary power to grant as well as revoke probation. This discretionary power must be exercised in accordance with certain due process requirements. Bernhardt v. State, 288 So. 2d 490 (Fla.1974). The supreme court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), set out the minimum requirements of due process in a revocation of parole setting. These requirements were made applicable to probation revocations in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a “neutral and detached” hearing body; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey; see also Bernhardt, 228 So. 2d at 499.
In the instant case, appellant was afforded basic due process. He received notice of the violation charges and received a fair hearing. We find no deprivation of due process in allowing the letter to serve as the instrument initiating the violation proceedings. Therefore, because appellant did not object, he waived his right to appeal.
AFFIRMED.
RYDER and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987)…stolen property which was the subject of the theft. There is no challenge to the first two grounds. We agree that the stolen property charge was incorrectly considered because it was not included in the affidavit of violation, see Robinson v. State, 442 So. 2d 284 (Fla. 2d DCA 1983); Pitchford v. State, 339 So. 2d 1143 (Fla. 3d DCA 1976), and therefore order it stricken from the order under review. We do not, however, remand the cause for reconsideration either of the revocation or the sentence because we are…
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Armstrong v. State, 566 So. 2d 943 (Fla. 5th DCA 1990)…ompare, Henry v. State, 564 So. 2d 212 (Fla. 1st DCA 1990). . Compare Brady v. State, 518 So. 2d 1305, 1308 (Fla. 3d DCA 1987), rev. denied, 523 So. 2d 576 (Fla.1988); Register v. State, 514 So. 2d 1122, 1124 (Fla. 1st DCA 1987); Robinson v. State, 442 So. 2d 284 (Fla. 2d DCA 1983). . "If Ray’s counsel had requested the improper instruction, or had affirmatively relied on that charge, as evidence by argument to the jury or other affirmative action, we could uphold a finding of waiver....” (emphasis supplied…
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Diller v. State, 711 So. 2d 54 (Fla. 5th DCA 1998)…lations were material. It was the judge’s position that since probation is a matter of grace and not of right then all violations of conditions of probation are material. The trial judge is not alone in this thinking. The court in Robinson v. State, 442 So. 2d 284, 286 (Fla. 2d DCA 1988), stated the trial court’s authority in this way: Probation is a matter of grace rather than right. The trial judge has broad discretionary power to grant as well as revoke probation. We agree that if a condition of probatio…
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
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Bouie v. State, 360 So. 2d 1142 (Fla. 2d DCA 1978)
- White v. State, 355 So. 2d 492 (Fla. 3d DCA 1978)
- Carpenter v. State, 355 So. 2d 492 (Fla. 3d DCA 1978)