FRANCIS WILLIAM SUGHRUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed Sughrue's convictions for drug trafficking, conspiracy, and battery but reversed the probation violation finding because the state failed to prove his probationary status at trial.
A probation violation cannot be sustained when the state fails to prove the defendant's probationary status at trial.
[1] The state bears the burden of proving a defendant's probationary status to sustain a probation violation, and failure to present such evidence at trial requires reversal.
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Join FLexlaw to unlock all legal intelligenceSughrue was convicted of trafficking in cocaine over 400 grams, conspiracy to traffic in cocaine, battery on a law enforcement officer, and simple bat…
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PER CURIAM.
Francis Sughrue appeals from his convictions for trafficking in cocaine in an amount over 400 grams, conspiracy to traf fic in cocaine, battery on a law enforcement officer, simple battery and violation of probation. Sughrue was sentenced as a violent habitual offender to two concurrent life sentences for the first two counts. On count three he was sentenced to five years concurrent. On count four he was not sentenced. Furthermore, he was found in violation of the probation which had been imposed for a prior conviction and sentenced to ten years in Florida State Prison.
Appellant has presented four points on appeal, none of which reveals reversible error except, possibly, his Point III, which suggests error in the determination that appellant had violated his probation.
Among other things, appellant contends that he did not know he was on probation at the time of the commission of the acts alleged to be violations of probation. The burden of proof was on the state to prove the probationary status which, no doubt through oversight, was not proven during the trial of the case, wherein the probation violation matters were considered by the trial court. We therefore feel compelled to reverse that aspect of the case.
Accordingly, we affirm the judgment of conviction and sentence in all respects, except as to the probation violations, and remand the cause to the trial court to further consider the charges against appellant having to do with a violation of probation and proceed thereafter according to law.
DOWNEY and POLEN, JJ., and FEDER, RICHARD Y., Associate Judge, concur.