CARLOS A. PIMENTEL A/K/A JOSE QUINONES A/K/A NEIVER CASTRO GUZMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Pimentel, operating under multiple aliases, appealed probation revocation judgments in two cases. The court affirmed the revocation in one case where he committed new crimes while on probation, but reversed the revocation in the second case because the state failed to present evidence supporting the charged violation.
The court affirmed the probation revocation in case 86-12147 because sufficient evidence supported the new crimes committed while on probation. The court reversed the revocation in case 87-6875 because the state failed to present evidence of the charged violation (failure to report), and probation cannot be revoked for conduct not charged by affidavit and warrant, even if other violations occurred.
[1] Probation cannot be revoked for conduct not charged by affidavit and warrant.
[2] A trial court errs by revoking probation for a violation different from the one specified in the affidavit and warrant.
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Join FLexlaw to unlock all legal intelligence“A person's probation cannot be revoked for conduct not charged by affidavit and warrant.”
Establishes the fundamental legal principle that probation revocation is limited to conduct specifically charged in the affidavit and warrant.
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Join FLexlaw to unlock all legal intelligencePimentel was serving probation under two different names in two separate cases. In case 86-12147, he violated probation by committing two new crimes u…
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SCHOONOVER, Judge.
The appellant, Carlos A. Pimentel, a/k/a Jose Quinones, a/k/a Neiver Castro Guzman, challenges the final judgments and sentences imposed upon him after he was found guilty of violating the terms and conditions of his probation in two different cases. We affirm in part and reverse in part.
The appellant, while serving two different terms of probation, under two different names, was charged with violating his probation in both cases. He pled not guilty to the charges, and one hearing was held in connection with both cases.
In circuit court case number 86-12147, the appellant under the name of Jose Alberto Quinones was charged with and found guilty of violating the terms and conditions of his probation when he committed two new crimes under the name of Neiver Castro Guzman. The trial court revoked his probation and sentenced him to serve a departure sentence of fifteen years imprisonment for the underlying crime of robbery. We find no merit in the appellant’s contention that the trial court’s reasons for departure were invalid. We, accordingly, affirm the judgment and sentence entered in that case. See Williams v. State, 559 So. 2d 680 (Fla. 2d DCA 1990).
In circuit court case number 87-6875, the appellant under the name of Carlos A. Pi-mentel was charged with violating the terms and conditions of his probation by failing to report to his probation officer. At the probation revocation hearing, the state presented no evidence concerning this violation. The trial court, however, found him guilty of violating the terms and conditions of his probation. The court then revoked his probation and sentenced him to serve a departure sentence of fifteen years imprisonment for the underlying offense of possession of cocaine with intent to sell or deliver. The court ordered this sentence to be served consecutively to the sentence imposed in case number 86-12147.
A person’s probation cannot be revoked for conduct not charged by affida vit and warrant. See § 948.06(1), Fla.Stat. (1987); Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). In case number 87-6875, the state charged the appellant with violating his probation by failing to report to his probation officer and at the probation revocation hearing failed to present any evidence that he was guilty of that charge. Although sufficient evidence was presented to establish that the appellant was guilty of other offenses, we have held that probation cannot be revoked for one reason when the affidavit and warrant state another. Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977). The trial court, therefore, erred by revoking the appellant’s probation in case number 87-6875.
We, accordingly, reverse and remand with instructions to reinstate the appellant’s probation in case number 87-6875. The state, however, is not precluded from taking any further appropriate action it deems advisable in connection with the appellant’s probation on this charge.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pimentel v. State, 594 So. 2d 304 (Fla. 1992)…HARDING, Justice. We have for review Pimentel v. State, 560 So. 2d 1387 (Fla. 2d DCA 1990). The basis for our jurisdiction lies in the fact that the district court of appeal affirmed the trial court’s judgment and sentence in reliance upon Williams v. State, 559 So. 2d 680 (Fla. 2d DCA 1990), a case which this Court sub…
Authorities Cited
- Sias v. State, 559 So. 2d 680 (Fla. 3d DCA 1990)
- Williams v. State, 559 So. 2d 680 (Fla. 2d DCA 1990)
- Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977)
- Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986)