SIDNEY C. EARLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sidney Earle appealed the revocation of his probation in three cases and the imposition of restitution. The court affirmed the revocation and restitution but remanded for the trial court to amend the revocation orders to conform to its oral pronouncements, which relied only on three of four alleged violations.
The court affirmed the probation revocation and restitution but remanded because the written revocation orders must conform to the trial court's oral pronouncements, which indicated reliance on only three violations rather than all four. Earle's failure to object to restitution below precluded him from contesting it on appeal.
[1] A probation violation cannot be found based on failure to pay restitution without evidence of the probationer's ability to pay.
[2] A trial court may not find a probation violation based on an offense not charged in the affidavit.
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Join FLexlaw to unlock all legal intelligence“A written order revoking probation must conform to the court's oral pronouncement.”
Establishes the fundamental principle requiring that written orders match the trial court's actual oral statements regarding which violations supported the revocation decision.
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Join FLexlaw to unlock all legal intelligenceEarle admitted to three probation violations: failing to submit monthly reports, failing to maintain his approved residence and instead residing with …
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PER CURIAM.
Appellant appeals the revocation of his probation in three separate cases and the imposition of restitution as a condition of probation. We affirm appellant’s convictions and the imposition of restitution, but remand for the trial court to amend the revocation orders to conform to its oral pronouncements.
At the plea hearing, the trial judge accepted appellant’s admissions of three of the four alleged violations of probation: (1) appellant failed to submit required monthly reports; (2) appellant failed to maintain a residence at his approved residence and has in fact resided with Stephanie Williams, contrary to a trespass order taken out by Stephanie Williams; and (3) appellant failed to follow instructions to cooperate with project “SURE” to establish full-time employment and to call in the name and address of his employer once he claimed to have found a job. Appellant’s admissions, which are substantial under the facts and circumstances of this case, support the revocation orders and judgments and sentences. Wilson v. State, 506 So. 2d 1170 (Fla. 1st DCA 1987); Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979); Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979).
It is apparent from the record that the trial court intended to revoke probation and impose the sentences it did solely on the grounds of the three admissions. There is no indication that the trial court relied on the fourth alleged violation: appellant failed to live at liberty without violating the law by committing an assault upon Stephanie Williams. Therefore, remand for reconsideration of either the revocation orders or the sentences is not necessary. Wilson, supra.
In the orders of revocation of probation, the trial court found violations of conditions “as stated in the affidavit dated 7/21/86.” This statement implies that the trial judge relied on all four alleged violations, including the assault charge which appellant disputed. A written order revoking probation must conform to the court’s oral pronouncement. Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979).
We find no merit in appellant’s argument that he received no notice as to the possibility of the imposition of restitution. Appellant’s failure to object below precludes him from contesting the imposition of restitution on appeal. Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981). Although appellant waived his right to require the trial court to determine his ability to pay at the time the court entered the order, a showing of solvency must precede revocation of probation for nonpayment of restitution. Peterson v. State, 384 So. 2d 965 (Fla. 1st DCA 1980).
Affirmed in part, reversed in part, and remanded for the trial court to correct the orders of revocation of probation.
BOOTH, WIGGINTON and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dantler v. State, 584 So. 2d 198 (Fla. 1st DCA 1991)…ormal written order finding the probationer in violation of the terms and conditions of probation must conform to the oral pronouncements at the revocation hearing and sentencing. Gardner v. State, 569 So. 2d 532 (Fla. 1st DCA 1990); Earle v. State, 519 So. 2d 757, 758 (Fla. 1st DCA 1988); Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990); Morris v. [*199] State, 563 So. 2d 1136 (Fla. 3d DCA 1990); Donley v. State, 557 So. 2d 943, 945 (Fla. 2d DCA 1990). At the hearing in this cause, the trial court found a…
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Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993)…On remand, except for omitting appellant’s violation for failure to complete community service hours, the written order of revocation must conform to the court s oral pronouncement. Archie v. State, 558 So. 2d 183 (Fla. 3d DCA 1990); Earle v. State, 519 So. 2d 757 (Fla. 1st DCA 1988). Upon revoking community control and probation the court sentenced appellant to concurrent terms in prison for Count I, as well as Count II. The latter was a misdemeanor for which appellant had initially been sentenced only to…
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Archie v. State, 558 So. 2d 183 (Fla. 3d DCA 1990)…was then adjudicated guilty of the underlying offense of robbery, and sentenced to five-and-a-half years in prison. As the state properly concedes, a written order of revocation must conform to the trial court’s oral pronouncement. Earle v. State, 519 So. 2d 757 (Fla. 1st DCA 1988); Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979). The written order in this case addresses the restitution and employment issues and, therefore, does not conform to the trial judge’s oral pronouncement. For these reasons, we…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Sterling Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)
- Goodson v. State, 400 So. 2d 791 (Fla. 2d DCA 1981)
- Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987)
- Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979)
- Peterson v. State, 384 So. 2d 965 (Fla. 1st DCA 1980)