MARCUS BENJAMIN HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a probationer cannot have probation revoked for conduct not charged in an affidavit and warrant.
Appellant's probation was revoked based on six alleged violations, but only two were properly charged in the record. The trial court considered four a…
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[*244] SANDERLIN, Judge.
This appeal is from an order revoking appellant’s probation and the judgments and sentences that followed. We reverse.
The trial court’s revocation order found that appellant had violated his probation in six respects. First, the trial court found that appellant had wilfully failed to pay the costs of his supervision. Second, appellant had unlawfully taken the property of another. The last four violations stemmed from alleged check forgery incidents occurring on January 14 and 15, 1985.
Only the first two violations were charged in the affidavit and warrant appearing in the record. While the transcript of the probation revocation hearing reveals that the trial judge may have had before him an amended affidavit charging the remaining four violations, the record does not contain any amended affidavit or a warrant. It is also apparent that neither of these documents has ever been filed in the circuit court.
With respect to the last four violations, the trial court cannot revoke appellant’s probation for conduct not charged by affidavit of probation violation and warrant. See § 948.06(1), Fla.Stat. (1985); Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984); Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977). Because the affidavit and warrant appearing in the record do not charge these last four violations, the trial court erred in revoking appellant’s probation on this basis.
As for the first violation, the trial court found that there was insufficient evidence to support this charge. Further, the state nol pressed the second violation at the initial probation revocation hearing. Therefore, appellant’s probation could not be revoked for these violations.
Accordingly, we reverse the order of revocation of probation and the judgments and sentences that followed, and remand to the trial court for further proceedings.
SCHOONOVER, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)…rged in the affidavit. The revocation of a defendant’s probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Wyns v. State, 679 So. 2d 882 (Fla. 5th DCA 1996); Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). In the present case, the state contends that the issue was not properly preserved for review under section 924.051(3), Florida Statutes, but we must reject this argument. A contemporaneous objection was not required because a dep…
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Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)…on, revoked it, and imposed sentence. In revoking Mr. Parminter’s probation, the trial court committed two errors. First, a trial court is not permitted to revoke probation on- conduct not charged in the affidavit of violation. See Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). Here, because the affidavit failed to allege a violation of probation by the possession of cocaine, the trial court could not violate Mr. Parminter’s probation on that basis. Second, the general rule is that a trial on a new cha…
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Baker v. State, 760 So. 2d 1115 (Fla. 4th DCA 2000)…er'guilty of three of the technical violations. A trial court cannot revoke a defendant’s community control for conduct not charged by affidavit of violation and warrant. See Harris v. State, 525 So. 2d 449, 450 (Fla. 2d DCA 1988); Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). See also Donald v. State, 611 So. 2d 1322 (Fla. 1st DCA 1993) (reversing a revocation of probation where there was no formal charge of violation before the court at the time the court announced the revocation). Because the affida…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984)
- Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977)