WILLIAM PALMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation because the state failed to allege the basic facts of the alleged trespass violation, only that the probationer was arrested.
A trial court cannot revoke probation based solely on proof of arrest, and the state must allege the basic facts of the alleged violation in the affidavit.
[1] An affidavit supporting probation revocation must allege the basic facts of the alleged violation, including its nature, time, and place of occurrence, not merely that th…
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Join FLexlaw to unlock all legal intelligence“An affidavit upon which a permanent revocation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence.”
Court explaining the requirement for affidavits supporting probation revocation, citing Hines v. State.
William Palmer's probation was revoked based on an affidavit alleging only that he "was arrested for Trespassing," without alleging the basic facts of…
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PER CURIAM.
We reverse the trial court’s final order which revoked appellant’s probation because he “was arrested for Trespassing.” See Hines v. State, 358 So. 2d 183 (Fla.1978) (trial judge cannot revoke probation solely upon proof that probationer had been ar rested); In re A.R., 554 So. 2d 640 (Fla. 4th DCA 1989).
We note that appellant failed to make a contemporaneous objection to the trial court taking judicial notice of the probable cause affidavit for the trespassing incident. However, the relevant count of the “corrected and amended” affidavit for violation of probation also only alleged appellant “was arrested for Trespassing.” “An affidavit upon which a permanent revocation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence.” Hines, 358 So. 2d at 185. Thus, we hold that the state’s failure to allege appellant committed a trespass constituted fundamental error. See Hope v. State, 588 So. 2d 255 (Fla. 5th DCA 1991) (failure of an information to allege essential elements of criminal offense constitutes fundamental error).
Accordingly, we remand with directions to the trial court to reinstate appellant’s probation.
REVERSED AND REMANDED WITH DIRECTIONS.
LETTS, J., ALDERMAN, JAMES E., Senior Justice and OWEN, WILLIAM C., Jr., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)…, Florida Statutes, but we must reject this argument. A contemporaneous objection was not required because a deprivation of the right to due process of law is fundamental error. Wood v. State, 544 So. 2d 1004 (Fla. 1989). See, e.g., Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992) (failure to allege the basic facts concerning the alleged probation violation is fundamental error). We are unable to determine whether the trial court would have revoked the defendant’s probation and imposed the same sentence…
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Davis v. State, 891 So. 2d 1186 (Fla. 4th DCA 2005)…contemporaneous objection [is] not required [to preserve the issue for appellate review] because a deprivation of the right to due process is a fundamental error.” Nagel v. State, 758 So. 2d 1206, 1208 (Fla. 4th DCA 2000). See also Palmer v. State, 603 So. 2d 535, 536 (Fla. 4th DCA 1992). Here, although the transcript indicates that the court was advised of the amended charges, as there is a reference to counts VI and VII, there is no indication that an amended document of any kind was furnished to either D…
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Nagel v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)…2d DCA 1986)_ A contemporaneous objection [is] not required [to preserve the issue for appellate review] because a deprivation of the right to due process is a fundamental error. Wood v. State, 544 So. 2d 1004 (Fla.1989). See, e.g., Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992)(failure to allege the basic facts concerning the alleged probation violation is fundamental error). Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); see also Crum v. State, 286 So. 2d 268, 269 (Fla. 4th DCA 1973); S…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Garciga v. Garciga, 588 So. 2d 255 (Fla. 3d DCA 1991)
- In the Interest of A.R., 554 So. 2d 640 (Fla. 4th DCA 1989)