JOSEPH C. WEIDMANN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
Appellant was convicted of sexual battery of and committing a lewd and lascivious act upon a child under the age of sixteen over whom he had familial authority. He challenges the trial court’s modification of his probation that imposes a special condition which precludes him from living within a three-quarter’s mile radius of any school for minors. Pursuant to the supreme court’s recent decision in Clark v. State, 579 So. 2d 109 (Fla.1991), in which it was held that a trial court may not enhance probation unless a violation of probation has been formally charged and the probationer has been given notice and hearing, we reverse the order modifying appellant’s probation and remand the matter to the trial court.
SCHEB, A.C.J., and RYDER and PATTERSON, JJ., concur.
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Russo v. State, 603 So. 2d 1353 (Fla. 1st DCA 1992)…to incarceration. Finding that Clark mandated such result, this court vacated the modification order, and the portion of the revocation order based on the violation of the added condition of probation. 584 So. 2d at 1112. See also Weidmann v. State, 582 So. 2d 1251, 1252 (Fla. 2d DCA 1991); Brenatelli v. State, 555 So. 2d 1315, 1316 (Fla. 5th DCA 1990). The record in this case reflects that the trial court added a new condition of community control without notice and hearing, when there had been no violation…
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Mundorff v. State, 890 So. 2d 1234 (Fla. 1st DCA 2005)…Stat.; Clark, 579 So. 2d at 110-11. Although appellant arguably received a hearing before his probation was extended, it cannot be said that he received notice of a violation, because no affidavit of violation was ever filed. See Weidmann v. State, 582 So. 2d 1251, 1251 (Fla. 2d DCA 1991) (applying Clark’s holding that a trial court may not enhance probation unless a violation of probation has been formally charged and the probationer has been given notice and a hearing). The trial court’s informing appellant…
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Perez v. State, 884 So. 2d 306 (Fla. 2d DCA 2004)…ons of probation by extending the probationary period upon notice of the alleged violation, a hearing, and proof that the defendant has violated the terms and conditions of probation. See Clark v. State, 579 So. 2d 109 (Fla.1991); Weidmann v. State, 582 So. 2d 1251 (Fla. 2d DCA 1991); Russo v. State, 603 So. 2d 1353 (Fla. 1st DCA 1992). However, in order for the trial court to modify the terms and conditions of probation by extending the probationary period, the State must prove that the defendant’s violation…
Authorities Cited
- Clark v. State, 579 So. 2d 109 (Fla. 1991)