STATE OF FLORIDA, APPELLANT,
v.
CYNTHIA ANN BLACKMAN, APPELLEE
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The state has no right to appeal a trial court's decision not to revoke probation.
The state appealed a trial court's decision to modify a defendant's community control by ordering drug treatment instead of revoking it. The state arg…
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PER CURIAM.
Appellee Cynthia Blackman has moved to dismiss the state’s appeal in this case.
In 1984 Ms. Blackman was placed on community control and probation for two counts of robbery. Although this sanction constituted a departure from the recommended guideline sentence, the state apparently chose not to appeal the departure, which it would have been authorized to do under Florida Rule of Appellate Procedure 9.140(c)(l)(J).
Approximately one year later Blackman was charged with violating community control by using drugs. The trial court heard evidence which would have supported revocation of Blackman’s community control, but chose instead to accept the. probation officer’s recommendation to order Black-man to enter and complete a drug treatment program. The state filed a notice of appeal from this decision on the theory it constituted a downward departure from the guidelines.
The decision to modify, rather than revoke, Blackman’s community control was one of the options available to the trial court under section 948.06, Florida Statutes (1985). While Florida Rule of Appellate Procedure 9.140(b)(1)(C) permits a defendant to appeal an order revoking or modifying probation, neither the rules nor the Florida statutes afford the state a similar right of appeal. When a trial court determines that probation should not be revoked, and thus imposes no sentence, the state has no remedy either by direct appeal or by certiorari. Jones v. State, 477 So. 2d 566 (Fla.1985). Accordingly, we grant appellee’s motion to dismiss.
SCHEB, A.C.J., and SCHOONOVER and HALL, JJ., concur.
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State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)…other line of cases holds that the state lacks authority to appeal modifications of probation or community control. See, e.g., State v. Heddon, 840 So. 2d 439 (Fla. 5th DCA 2003); State v. Gray, 721 So. 2d 370 (Fla. 4th DCA 1998); State v. Blackman, 488 So. 2d 644 (Fla. 2d DCA 1986). [*690] From these two lines of cases, a consistent general rule emerges: upon a violation of probation or community control, the court has authority to “revoke, modify or continue” the probation or community control. If the court…
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State v. Gray, 721 So. 2d 370 (Fla. 4th DCA 1998)…n illegal sentence or a downward departure sentence. However, we can find no authority for the state to appeal a modification of probation since the court does not “sentence” a probationer when it modifies probation. We agree with State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986), that the rules permit only a defendant to appeal an order [*371] revoking or modifying probation; the rules do not allow the state to do so. Dismissed. GUNTHER and STEVENSON, JJ., concur.…
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State v. LaFAVE, 113 So. 3d 31 (Fla. 2d DCA 2012)…wnward departure sentence. But there is no authority for the State to appeal either a modification or termination of probation because a modification or termination of probation does not result in the imposition of a sentence. See State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986); State v. Gray, 721 So. 2d 370, 371 (Fla. 4th DCA 1998); see also State v. Russell, 67 So. 3d 1179 (Fla. 4th DCA 2011) (relying on Gray in dismissing a state appeal of an order modifying probation). In State v. Brooks, 890 S…
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- Hollis Jones v. State, 477 So. 2d 566 (Fla. 1985)