TERESA GAYLE CARWISE, APPELLANT/CROSS APPELLEE,
v.
STATE OF FLORIDA, APPELLEE/CROSS APPELLANT
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The court held that a state attorney cannot refuse to represent the state's interests at a probation violation hearing. A probation violation hearing is not a criminal prosecution but rather a civil matter involving enforcement of a court order, and the state attorney has a statutory duty to represent the state in such proceedings.
A state attorney does not have the authority to refuse to represent the state at a probation violation hearing. The state attorney has a statutory duty under Florida law to represent the state's interests in such proceedings because the state is a party to the matter and the hearing involves the taking of testimony and presentation of evidence.
[1] A state attorney has a duty to prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as…
[2] A probation violation hearing is a hearing to determine a violation of a court order, not a prosecution for a crime.
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 intelligence“For some reason the state attorney, and to á much lesser degree, the attorney general, feel a probation violation hearing is a prosecution for a crime. It is not; it is a violation of a court order hearing.”
Establishes the fundamental legal distinction that probation violation hearings are civil enforcement matters, not criminal prosecutions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCarwise was on probation when her probation officer filed an affidavit alleging she violated conditions of her probation. At the probation violation h…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Judge.
This is an appeal from an order revoking probation. Both the defendant and the state have appealed and the issue is whether the state attorney has the authority to refuse to represent the state’s interest at a probation violation hearing.
Appellant appeared before the court after an affidavit had been filed by her probation officer alleging she had violated conditions of her probation. At the onset of the hearing to determine whether she had violated her probation the assistant state attorney, for no reason shown in the record, declared “Pursuant to Article 5, Section 17 of the State Constitution and Florida Statute Chapter 27, the State enters a nol-pros as to the charge of violation of probation.”
We have reviewed the constitutional and statutory provisions mentioned and have considered the arguments in the brief as to why we should allow a state attorney to refuse to represent the state at a probation violation hearing and remain as unpersuaded as was the trial judge. For some reason the state attorney, and to á much lesser degree, the attorney general, feel a probation violation hearing is a prosecution for a crime. It is not; it is a violation of a court order hearing. The prosecution ended when the accused was found guilty and placed on probation by court order. Section 27.02, Florida Statutes (1983) provides:
Duties before Court: The state attorney shall appear in the circuit and county courts within his judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as provided in chapters 39 and 959. The intake procedures of chapter 39 and 959 shall apply as provided in those chapters.
Once the state completes its prosecution and the court either adjudicates the defend ant guilty or places her on probation without an adjudication of guilt the executive authority of the state, the state attorney, loses control over the matter. Of course the executive branch of government retains its pardon and parole jurisdiction, but that is not in the hands of the state’s attorneys, and those matters do not involve court proceedings.
Because the state is a party where probation violation matters are concerned and because the court hearing involves the taking of testimony and presentation of other evidence, it is clear the state attorney is the right one to represent the state’s interests and present the evidence at the hearing. It is essential that court orders be complied with, especially by those who have violated the law and are given the grace of probation, and it is equally important that the state attorney, the person charged by the citizens to represent their best interests, do his best to see to it that violators of court orders are brought to justice.
The orders of the trial court are affirmed.
AFFIRMED.
COBB and FRANK D. UPCHURCH, Jr., JJ., concur.
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State v. Woodland, 602 So. 2d 554 (Fla. 4th DCA 1992)…derlying offense in the instant case (violation of probation) is not an offense against the peace and dignity of the state. A probation violation hearing is not a prosecution for a crime; it is a violation of a court order hearing. Carwise v. State, 449 So. 2d 943 (Fla. 5th DCA 1984). Although “the punishment of conduct as contempt of [*556] court will not bar the criminal prosecution of the accused for the substantive offense committed by such conduct,” Wilson v. State, 122 Fla. 54, 164 So. 846, 847 (1935),…
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A.T. v. State, 706 So. 2d 109 (Fla. 2d DCA 1998)…prosecution for crime different from one of which he was already convicted); see also State v. Woodland, 602 So. 2d 554 (Fla. 4th DCA 1992) (violation of probation order does not, by itself, constitute separate substantive crime); Carwise v. State, 449 So. 2d 943 (Fla. 5th DCA 1984) (probation violation hearing is [*110] not prosecution for a crime but for a violation of court order). We, therefore, affirm the order of community control. Finally, we agree with the appellant, and the State concedes the erro…
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Edwards v. State (Fla. 2d DCA 2026)