KENNETH MCHELLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth McHellen appeals a probation revocation finding based on three alleged violations: failure to pay supervision costs, arrest for sexual battery, and failure to make restitution and court cost payments. The court affirmed the revocation, rejecting McHellen's arguments that the trial court failed to make adequate findings regarding ability to pay and which specific violations justified revocation.
The court affirmed the probation revocation, holding that the trial court did not err. The state presented sufficient evidence of all three alleged violations, and remand for entry of a new revocation order was not warranted, distinguishing this case from precedent where the basis for violation findings was unclear.
[1] A trial court is not required to make specific findings of fact regarding a probationer's ability to pay before revoking probation for failure to pay court costs and rest…
[2] A trial court is not required to make specific findings as to which violations it relied upon to revoke probation when the record clearly demonstrates the basis for the r…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The state presented evidence that appellant failed to pay restitution and costs and that appellant committed sexual battery, the three alleged violations. Remand for entry of a new revocation order is not warranted under these circumstances.”
The court's rationale for affirming the revocation despite McHellen's claim that findings were inadequate, based on the sufficiency of evidence presented.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn June 1990, McHellen pleaded no contest to grand theft auto and driving with a suspended license, receiving 18 months probation plus various fines a…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant, Kenneth McHellen, appeals from the finding that he was in violation of probation. We affirm.
In June of 1990, appellant pled no contest to grand theft auto and driving while his license was suspended or revoked. The negotiated sentence was 18 months probation, $210 restitution, $200 felony court costs, $1,000 court costs, and $20 to the Crime Compensation Trust Fund. In addition, appellant was ordered to pay $40 per month toward the cost of his supervision. In December of 1990, the state filed an affidavit of violation of probation, alleging the following violations: (1) appellant was $80 in arrears on his cost of supervision payments; (2) appellant was arrested on October 15, 1990, for sexual battery upon a thirteen-year-old girl; and (3) appellant failed to make regular monthly payments toward his restitution and court costs, as instructed.
Appellant’s first argument, that the trial court erred in revoking probation for failure to pay court costs and restitution without making specific findings of fact regarding his ability to pay, is without merit. Appellant’s second argument warrants discussion. Appellant contends the trial court erred in failing to make specific findings as to which violations it relied upon to revoke his probation. In its brief, the state conceded that the decisions relied upon by appellant mandate remand for entry of a new revocation order. We disagree.
In Clark v. State, 510 So. 2d 1202 (Fla. 2d DCA 1987), the record contained no written order conforming to the oral pronouncement revoking probation. The cause was remanded for entry of a written order. In DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988), it also appears that no written order was entered.
In Knight v. State, 566 So. 2d 339 (Fla. 1st DCA 1990), the alleged violations of community control were: (1) changing place of residence or employment without consent of community control officer; (2) violating the law by possessing cannabis and a concealed weapon; and (3) not staying at the approved residence. On appeal, it was noted that the “written final judgment does not indicate whether the court found the defendant guilty based upon evidence received or whether the court made a finding based upon entry of a plea. The transcript of the proceeding is also not clear on this matter.” 566 So. 2d at 340. The exchange between defense counsel and the court, quoted in the opinion, demonstrates the lack of certainty as to the basis upon which a violation was found. The cause was reversed and remanded for a new hearing on the allegation that the defendant violated community control.
The above decisions are factually distinguishable from the cause currently on appeal. The state presented evidence that appellant failed to pay restitution and costs and that appellant committed sexual bat tery, the three alleged violations. Remand for entry of a new revocation order is not warranted under these circumstances.
AFFIRMED.
ERVIN, ZEHMER and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boynton v. State, 622 So. 2d 87 (Fla. 1st DCA 1993)…cifying the basis for revocation. This is not a case where the record conclusively establishes that appellant violated all of the conditions alleged to have been violated in the affidavit for revocation of community control.2 See, McHellen v. State, 591 So. 2d 668 (Fla. 1st DCA1991). Therefore, we remand for entry of a written order stating the grounds for revoking community control. Knight v. State, 566 So. 2d 339 (Fla. 1st DCA1990); Robinson v. State, 609 So. 2d 89 (Fla. 1st DCA 1992).3 The order under rev…
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Staten v. State, 614 So. 2d 45 (Fla. 1st DCA 1993)…PER CURIAM. AFFIRMED. See McHellen v. State, 591 So. 2d 668 (Fla. 1st DCA 1991). WIGGINTON, MINER and WOLF, JJ., concur.…
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Jacobs v. State, 668 So. 2d 294 (Fla. 1st DCA 1996)…the revocation order is, therefore, well taken. We do not, however, agree that even the complete lack of a written order would constitute harmful error on this record. See Thomas v. State, 685 So. 2d 475 (Fla. 3d DCA 1991). Accord McHellen v. State, 591 So. 2d 668 (Fla. 1st DCA 1991). We distinguish the present case from Eckhart v. State, No. 95-1381, 1996 WL 5141 (Fla. 1st DCA Jan. 8, 1996); Wood v. State, 653 So. 2d 493 (Fla. 4th DCA 1995); and Wiggers v. State, 652 So. 2d 1294 (Fla. 1st DCA 1995), where we…
Authorities Cited
- Clark v. State, 510 So. 2d 1202 (Fla. 2d DCA 1987)
- Knight v. State, 566 So. 2d 339 (Fla. 1st DCA 1990)
- DeVILLE v. State, 529 So. 2d 319 (Fla. 2d DCA 1988)