JAY MILES KANE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed probation revocation for failure to pay mandated costs, striking improper findings based on violations alleged after the probationary term expired.
A probation revocation based on failure to pay mandated costs is proper even though the trial court improperly considered violations alleged in an amended affidavit filed after the probationary term expired.
[1] A trial court errs in considering probation violations alleged in an amended affidavit filed after the probationary term has expired, but such error does not require reve…
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Join FLexlaw to unlock all legal intelligenceKane's probation was revoked after he failed to pay costs mandated in his probation order for a criminal mischief offense. The trial court found Kane …
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WENTWORTH, Judge.
Appellant seeks review of an order by which his probation was revoked and he was adjudged guilty and sentenced to a term of incarceration for a ciminal mischief offense. The revocation proceeding was initiated by a timely filed affidavit alleging that appellant violated his probation by failing to pay costs mandated in the probation order. Expressing some concern as to whether appellant had pursued a diligent work effort, the court further found that appellant had the ability to make the required payments and had violated his probation by failing to do so.
However, the court also found that appellant had violated various other conditions of his probation as alleged in an amended affidavit filed after the expiration of the probationary term. As indicated in Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981), the court should not have considered the new charges which were not embraced within the timely affidavit, and the findings relating thereto are hereby stricken from the revocation order. But since the court indicated that it was primarily concerned with appellant’s failure to pay the mandated costs, and it appears that appellant’s probation would have been revoked for this violation alone, the improper findings do not require reversal of the revocation order. See Sparks v. State, 453 So. 2d 539 (Fla. 2d DCA 1984).
Therefore, as amended, we hereby affirm the order appealed.
SHIVERS and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McPHERSON v. State, 530 So. 2d 1095 (Fla. 1st DCA 1988)…amended affidavit alleging this count was not filed until November 2, 1987; appellant’s probation expired on August 25, 1987. “The court should not have considered the new charges which were not embraced within the timely affidavit.” Kane v. State, 473 So. 2d 786 (Fla. 1st DCA 1985); Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981) (where additional counts that were added to the affidavit of violation after expiration of defendant’s probationary period constituted new and untimely filed charges, the trial c…
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Davis v. State, 623 So. 2d 579 (Fla. 3d DCA 1993)…tion; however, probation may not be revoked on the basis of any new allegations contained only in the untimely affidavit. Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981); see also Jess v. State, 384 So. 2d 328 (Fla. 3d DCA 1980) and Kane v. State, 473 So. 2d 786 (Fla. 1st DCA 1985). Here, an original affidavit of violation of probation (affidavit I) was timely filed on July 28, 1991. It alleged, inter alia, Davis’s failure to file a written monthly report in April 1991 and to obtain his supervisor’s conse…
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Andril Lynette Jenkins v. State, 24 So. 3d 752 (Fla. 1st DCA 2009)…the resulting sentence solely upon the other violation. The finding as to a violation for moving without permission is stricken, and the revocation order is otherwise affirmed. See Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987); Kane v. State, 473 So. 2d 786 (Fla. 1st DCA 1985). BARFIELD and VAN NORTWICK, 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
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- Sparks v. State, 453 So. 2d 539 (Fla. 2d DCA 1984)