RAYMOND EUGENE CLARK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1990-04-18
No. 87-01338
HALL and PARKER, JJ., concur.
559 So. 2d 1272 Florida District Court of Appeal, Second District (1990) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The court held that a trial court may modify community control conditions based on an offender's written waiver and agreement without a hearing, distinguishing between modifications of conditions (permissible by waiver) and extensions of the probationary period (which require a hearing). The defendant's revocation was affirmed because his community control was lawfully modified when he voluntarily agreed to add a program condition.


Holding

The court held that section 948.06 does not require a hearing when an offender voluntarily executes a waiver and motion for modification of community control conditions before any affidavit of violation is filed. The procedures in section 948.06 apply only to extensions of probationary terms, not modifications of conditions, and a reappearance in court is not required when an offender has waived his rights.


Headnotes

[1] A trial court may modify community control conditions based on an offender's written agreement and waiver without a hearing if the modification is voluntary and occurs be…

[2] Section 948.06, Florida Statutes, which mandates a hearing for probation or community control violations, does not apply to voluntary modifications of conditions agreed t…

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Key Quotes

“where, as here, a voluntary modification occurs before the filing of any affidavit of violation, section 948.06 does not come into play. Thus, a reappearance in court by an offender who has executed a waiver and motion for voluntary modification is not required.”

Establishes the core holding that voluntary modifications by waiver do not require a court hearing under section 948.06.

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Facts & Procedural History

Raymond Clark pled nolo contendere to attempted arson on November 10, 1986, and was placed on two years of community control. Two days later, he signe…

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Opinion of the Court
SCHEB, Acting Chief Judge.

SCHEB, Acting Chief Judge.

This appeal addresses whether a trial court can modify community control conditions based on an offender’s out-of-court written agreement and waiver without first conducting a hearing with the defendant present pursuant to section 948.06, Florida Statutes (1987).

On November 10, 1986, the defendant pled nolo contendere to attempted arson and was placed on two years community control. Two days later, he signed a waiver of rights and motion to modify community control. The waiver form advised him that he had the right to counsel and to a hearing before the court. In signing the form, the defendant waived these rights and requested that his community control be modified to add a condition to require him to enter and complete a program at' the Lakeland Probation and Restitution Center. Later that day, the trial judge entered an order of modification adding the requested condition. On March 26, 1987, the defendant was found in violation of the additional condition. The court revoked his community control and sentenced him to three years in prison.

The defendant contends that his community control was improperly revoked as it was based on his violation of an illegally-imposed modification. We disagree.

We distinguish the instant case from Marsh v. State, 559 So. 2d 411 (Fla. 2d DCA 1990), in which this court reversed an order revoking probation where the probationer had agreed to an extension of her probationary period. This court in Marsh agreed with the First District’s opinion in Carter v. State, 516 So. 2d 331 (Fla. 1st DCA 1987), that the procedure set forth in section 948.-06 is the sole means by which a probation-, ary term may be extended. See also, Gurganus v. State, 391 So. 2d 806 (Fla. 5th DCA 1980); Patrick v. State, 336 So. 2d 1253 (Fla. 1st DCA 1976).

Here, however, the defendant’s community control was not extended, but merely modified to include a condition that he enter and complete a program at a probation and restitution center. No one suggests the additional condition was inappropriate. Rather, the defendant contends that his community control was improperly modified because section 948.06 mandates a judicial proceeding. We think, however, that where, as here, a voluntary modification occurs before the filing of any affidavit of violation, section 948.06 does not come into play.1 Thus, a reappearance in court by an offender who has executed a waiver and motion for voluntary modification is not required. We are mindful of the existence of Holcombe v. State, 553 So. 2d 1337 (Fla. 1st DCA 1989), and its companion case, Ford v. State, 553 So. 2d 1340 (Fla. 1st DCA 1989). In Holcombe, the court vacated a defendant’s order of modified probation, order of revocation of probation, and sentence. There, the court accepted the defendant’s argument that the trial court erred in enhancing the conditions of his probation by ordering him to enter and complete a residential program without him appearing before the court. We note that the authorities cited in Holcombe concern extensions rather than modifications.2 To the extent Holcombe requires a hearing for an offender who has not been charged with violating probation or community control but who has executed a waiver and motion to modify community control, we disagree.

Accordingly, we affirm the revocation of the defendant’s community control and the sentence imposed thereafter. HALL and PARKER, JJ., concur. . The procedures detailed in section 948.06 have limited application. The section is predicated on the occurrence that during "the period of probation or community control there is reasonable ground to believe a probationer or offender in community control has violated his probation or community control in a material respect." § 948.06(1), Fla.Stat. (1987).

. Holcombe cites Carter, Gurganus, and Patrick, supra. All three cases hold that section 948.06 requires a hearing when a probation or community control period is being extended regardless of the offender’s consent. They do not address whether a hearing is required when conditions are changed as opposed to the probation period being extended in length.


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Citator

Cited By

  • Clark v. State, 579 So. 2d 109 (Fla. 1991)
    …GRIMES, Justice. We review Clark v. State, 559 So. 2d 1272 (Fla. 2d DCA 1990), for conflict with Holcombe v. State, 553 So. 2d 1337 (Fla. 1st DCA 1989), and Ford v. State, 553 So. 2d 1340 (Fla. 1st DCA 1989). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Clark pled nolo contendere to attempted arson…
  • State v. Schafer, 583 So. 2d 374 (Fla. 4th DCA 1991)
    …ovided in part: 2. That Defendant’s agreement to extend probation, made without a hearing or advice of counsel is a nullity, Marsh v. State, [559 So. 2d 411 (Fla. 2d DCA 1990)]; Dover v. State, [558 So. 2d 101 (Fla. 1st DCA 1990)]; Clark v. State, [559 So. 2d 1272 (Fla. 2d DCA 1990)]. 3. That the officer relied solely on the information that there was an outstand [*376] ing warrant; however, a void warrant may not be the basis for a legal arrest and search. State v. Gifford, [558 So. 2d 444 (Fla. 4th DCA 199…
  • LEE v. State, 571 So. 2d 510 (Fla. 2d DCA 1990)
    …PER CURIAM. We affirm the revocation of the appellant’s community control upon the authority of our recent decision and opinion in Clark v. State, 559 So. 2d 1272 (Fla. 2d DCA 1990). SCHOONOVER, C.J., and SCHEB and DANAHY, JJ., concur.…

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