DAVID JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Jackson appealed his probation revocation and sentence, challenging both the factual basis for one violation charge and the trial court's refusal to credit him for time served at a community correctional center during probation.
The court held that the alcohol consumption charge must be stricken because no evidence supported it at the revocation hearing. The trial court must reconsider whether the single violation of the area-restriction condition alone warrants revocation. Jackson is entitled to sentence credit for time served at the Cocoa Community Correctional Center as an incarceration condition of probation.
[1] A probation revocation order must be supported by evidence for each alleged violation.
[2] A court must award sentence credit for time incarcerated as a condition of probation.
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Join FLexlaw to unlock all legal intelligence“since no evidence was adduced at the revocation hearing to support the alcohol consumption charge, that portion of the order must be stricken”
Establishes that unsupported violations cannot be used to support probation revocation
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Join FLexlaw to unlock all legal intelligenceJackson was on probation with conditions including remaining within a designated area of community release and abstaining from alcohol. The revocation…
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COBB, Judge.
David Jackson appeals from an order revoking his probation and his subsequent sentence on three counts.
The written revocation order states that Jackson violated his probation by (1) failing to remain within the designated area of community release, and (2) consuming alcoholic beverages while on work release. Jackson pleaded guilty with an explanation to violation number one, and the lower court properly found that a probation violation had occurred. However, since no evidence was adduced at the revocation hearing to support the alcohol consumption charge, that portion of the order must be stricken. Kemper v. State, 430 So. 2d 964 (Fla. 2d DCA 1983); Geri v. State, 415 So. 2d 782 (Fla. 1st DCA 1982).
We are unable to determine whether the trial judge would have revoked the probation and imposed the sentence he did based solely on a violation of the first condition. Therefore, we reverse the order of revocation and remand the cause to permit the court to consider whether that violation alone warrants revocation. See Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982); Watts v. State, 410 So. 2d 600 (Fla. 1st DCA 1982); Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980).
Jackson also contends the trial court erred in refusing him credit for the time he served at the Cocoa Community Correctional Center as a condition of his probation. The court is required to award sentence credit for any time during which the defendant is incarcerated as a condition of probation. State v. Jones, 327 So. 2d 18 (Fla.1976); Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980). We deem the placement in the Cocoa Correctional Center to be an incarceration, requiring credit. See Calhoun v. State, 403 So. 2d 1082 (Fla. 1st DCA 1981) (Jacksonville Community Correctional Center seen as adjunct of Duval County Jail with defendant entitled to credit for time he was confined there).
If the court on remand should decide to revoke Jackson’s probation, he must be given credit for the time served.
REVERSED and REMANDED.
ORFINGER, C.J., concurs.
SHARP, J., dissents with opinion.
SHARP, Judge,
dissenting.
Jackson made a detour to a drugstore while on work release to get medicine for his cold and a toothache. Jackson gave uncontroverted testimony that the counselors gave him permission to go. As a result, he missed the van that was sent to the work site to pick him up. Two hours later, a counselor found Jackson waiting at the work site. For this infraction of the community release program rules, the trial court revoked Jackson’s probation and imposed prison sentences totalling eight years. I cannot agree that the record shows a substantial or even a clear violation of probation. Compare Cuciak v. State, 410 So. 2d 916 (Fla.1982), with Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980). I would simply reverse.
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Albritton v. State, 458 So. 2d 320 (Fla. 5th DCA 1984)…the offense in question. AFFIRMED. COBB, C.J., and DAUKSCH, J., concur. . See § 921.001, Fla.Stat; Fla.R.Crim.P. 3.701. . See Key v. State, 452 So. 2d 1147 (Fla. 5th DCA 1984). . For an argument by analogy the defendant cites Jackson v. State, 449 So. 2d 309 (Fla. 5th DCA 1984), which relates to the revocation of probation for multiple violations some but not all of which are disapproved on appeal. However, many cases affirm without remand a revocation of probation based on any valid violation charge al…
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ORR v. State, 453 So. 2d 222 (Fla. 5th DCA 1984)…ed the sentence he did based solely on Orr’s disregard of the order to appear. Therefore, we reverse the order of revocation and remand the cause to permit the court to consider whether that violation alone warrants revocation. See Jackson v. State, 449 So. 2d 309 (Fla. 5th DCA 1984); Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982); Watts v. State, 410 So. 2d 600 (Fla. 1st DCA 1982). REVERSED and REMANDED. FRANK D. UPCHURCH, Jr., J., Concurs. SHARP, J., concurs in part; dissents in part, with opi…
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Slater v. State, 541 So. 2d 178 (Fla. 5th DCA 1989)…its oral pronouncement. Towson v. State, 382 So. 2d 870 (Fla. 5th DCA 1980). As to conditions 13 (payment of fees) and 16 (performance of community service), no evidence was adduced at the revocation hearing to support the charges. Jackson v. State, 449 So. 2d 309 (Fla. 5th DCA 1984). AFFIRMED as modified. DANIEL and GOSHORN, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Cuciak v. State, 410 So. 2d 916 (Fla. 1982)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)
- Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982)
- Sims v. State, 369 So. 2d 431 (Fla. 2d DCA 1979)
- Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980)
- Calhoun v. State, 403 So. 2d 1082 (Fla. 1st DCA 1981)
- Watts v. State, 410 So. 2d 600 (Fla. 1st DCA 1982)
- Geri v. State, 415 So. 2d 782 (Fla. 1st DCA 1982)
- Riley E. Kemper v. State, 430 So. 2d 964 (Fla. 2d DCA 1983)