MICHAEL MASELLI, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A conviction entered upon a plea of nolo contendere by a probationer is a sufficient lawful basis for revocation of probation.
[1] A conviction entered upon a plea of nolo contendere is a sufficient lawful basis for revocation of probation.
[2] A trial court may revoke probation based solely on a conviction entered pursuant to a nolo contendere plea, provided the plea was voluntary and had a factual basis.
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 intelligencePetitioner was charged with uttering a forged instrument while on probation, pleaded nolo contendere, and was convicted. His probation was revoked bas…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Factual Basis For Plea cases and more on FLexlaw
BOYD, Justice.
This case is before us on petition for review of the decision in Maselli v. State, 425 So. 2d 176 (Fla. 2d DCA 1983). We granted review of the case on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const. Petitioner was on probation when he was charged with uttering a forged instrument. He pleaded nolo contendere to the charge and was adjudged guilty. Subsequently, he was charged with violating the terms of his probation, which included the standard condition against any violation of law. On the basis of the conviction for uttering a forged instrument, the trial court revoked petitioner’s probation.
On appeal petitioner argued that the judgment of guilt rendered pursuant to a plea of nolo contendere was not a legally sufficient ground for the revocation of probation. The district court of appeal rejected this argument and affirmed the order of revocation, reasoning as follows:
It is well settled that the conviction of a crime is a sufficient basis for a probation revocation. Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978); Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968). The fact that the defendant may have pled nolo conten-dere does not detract from the legality of his conviction. Before a judge can accept a plea of nolo contendere, he must satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. Fla.R.Crim.P. 3.172(a). There may be many reasons why a defendant chooses to enter a plea of nolo contendere, but if a judgment of guilt is entered upon the plea we must assume that the conviction is valid unless it has been set aside. We do not suggest that in trying to convince the court not to revoke his probation a defendant should be precluded from asserting his innocence of the charge to which he pled nolo contendere. We hold only that the conviction, standing alone, is sufficient to sustain the court’s decision to revoke probation.
425 So. 2d at 176-77. We agree with the reasoning and the holding of the district court.
It should be pointed out that when a probationer is before the court accused of violating probation by committing an unlawful act, the judge may revoke probation upon finding that such unlawful act was committed by the probationer; it is not necessary that there be a conviction of the unlawful act. Russ v. State, 313 So. 2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975). When there has been a conviction, as the district court said, there is a clearly sufficient basis for the revocation. The judge may rely on the conviction even if it was imposed pursuant to a plea of nolo contendere. A plea of nolo contendere relieves the state of its burden of proving the factual allegations of the indictment or information. Bell v. State, 369 So. 2d 932, 934 (Fla.1979); Chesebrough v. State, 255 So. 2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972). The record of such a conviction speaks for itself. Of course, as the district court indicated, the probationer must be provided an opportunity to be heard on the question of whether he is guilty of the charge to which he pleaded no contest.
A conflicting decision is Donaldson v. State, 407 So. 2d 623 (Fla. 5th DCA 1981). There the court held that at a revocation hearing, where the basis for the alleged violation is a conviction entered upon a nolo contendere plea, the court must make inquiry into the circumstances of the nolo contendere plea. If it is found that the accused tendered such plea while maintaining his innocence, there must be further inquiry into whether the probationer in fact committed the offense put forth as the basis for revocation. The court cannot, under Donaldson, ground a revocation order solely on a judgment of conviction entered pursuant to a nolo plea. We find that the Donaldson decision was an erroneous statement of the law and we disapprove it.
We hold that a conviction entered upon a plea of nolo contendere by a probationer is a sufficient lawful basis for revocation of probation. Such a conviction is a sufficient ground for revocation because the court, before rendering judgment of conviction on a plea of nolo contendere, must hold a hearing and be satisfied that the plea is voluntary and that a factual basis exists for accepting it.
The decision of the district court of appeal is approved.
It is so ordered.
ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
-
Lambert v. State, 545 So. 2d 838 (Fla. 1989)…ing may use evidence of criminal conduct separate from a criminal conviction to establish a violation of probation. See Russ v. State, 313 So. 2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975); see also Maselli v. State, 446 So. 2d 1079 (Fla.1984). In my view, there is no justifiable reason why that same criminal conduct should not also be utilized to justify a departure sentence. In State v. Pentaude, 500 So. 2d at 528, we expressly so held, stating: [W]e note agreement with the…
-
McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…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, the supreme court stated in Maselli v. State, 446 So. 2d 1079 (Fla.1984), that: when a probationer is before the court accused of violating probation by committing an unlawful act, the judge may revoke probation upon finding that such unlawful act was committed by the probationer; it is not necessary that the…
-
Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985)…pervious to attack by means of a motion for post-conviction relief. Our second inquiry is directed to the validity of an uncounseled misdemeanor conviction to support revocation of probation and imposition of a prison sentence. In Maselli v. State, 446 So. 2d 1079, 1081 (Fla.1984), the court held “that a conviction entered upon a plea of nolo contendere by a probationer is a sufficient lawful basis for revocation of probation.” The holding in Maselli was premised upon the court’s recognition that acceptance o…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Chesebrough v. State, 255 So. 2d 675 (Fla. 1971)
- Berry v. Castro Farms, 313 So. 2d 758 (Fla. 1975)
- Yellow Freight Sys., Inc. v. Butler, 423 U.S. 924 (U.S. 1975)
- Watkins v. Estelle, 423 U.S. 924 (U.S. 1975)
- Chesebrough v. Florida, 406 U.S. 976 (U.S. 1972)
- Bailey v. North Carolina, 406 U.S. 976 (U.S. 1972)
- Bell v. State, 369 So. 2d 932 (Fla. 1979)
- Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968)
- Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977)
- Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978)