ANDREW JOSEPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andrew Joseph appealed his sentence imposed after revocation of his community control and probation for cocaine possession. The court affirmed the revocation of community control and probation but remanded to correct the written revocation order and vacate an illegal concurrent sentence on a misdemeanor count.
The court concluded the evidence adequately supported the revocation of community control and probation, but remanded the revocation order for correction. The court affirmed the sentence on Count I but vacated the illegal concurrent sentence on Count II (a misdemeanor). On remand, the written revocation order must omit the community service hours violation and conform to the court's oral pronouncement.
[1] An order of revocation may not be based upon a violation not charged in the affidavit.
[2] A written order of revocation must conform to the court's oral pronouncement, except for omitting violations not properly charged.
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Join FLexlaw to unlock all legal intelligence“An order of revocation may not be based upon a violation not charged in the affidavit”
Establishes the legal principle that prevents the court from finding a violation of community service hours that was not properly charged in the original affidavit
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Join FLexlaw to unlock all legal intelligenceJoseph was adjudged guilty of possession of cocaine and sentenced to time served followed by two years of community control and one year of probation.…
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OWEN, WILLIAM C., Jr., Senior Judge.
Appellant was sentenced to prison following the revocation of his community control and probation. Contrary to his contention here, we conclude that the evidence adequately supports the trial court’s oral pronouncement finding appellant had violated certain conditions of his community control and probation. See Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947). We approve the revocation of community control and probation, but remand the order of revocation for the court to amend it consistent with this opinion. We affirm the sentence on Count I, but vacate the illegal concurrent sentence on Count II.
Appellant was adjudged guilty of possession of cocaine, a lesser included of Count I, and was sentenced to time served, followed by two years of community control and one year of probation. The affidavits of violation of conditions of community control and probation charged, among other violations, appellant’s failure to seek work, and his failure to receive substance abuse evaluation. At the hearing the state amended the warrant to add the violation of failure to complete community service hours, but failed to amend the affidavit. The court stated that it found appellant in violation for failure to seek work, failure to receive substance abuse evaluation, and failure to complete community service hours. An order of revocation may not be based upon a violation not charged in the affidavit, Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990), and upon remand the amended order shall omit this violation as a basis of revocation.
The court’s written order of revocation, rather than specifically listing the violations upon which it was based, instead referred to violations by paragraph numbers only. While that might be expedient in some instances, here it only created confusion because the paragraph numbers in the order for community control and the paragraph numbers in the order for probation did not correspond. On remand, except for omitting appellant’s violation for failure to complete community service hours, the written order of revocation must conform to the court s oral pronouncement. Archie v. State, 558 So. 2d 183 (Fla. 3d DCA 1990); Earle v. State, 519 So. 2d 757 (Fla. 1st DCA 1988).
Upon revoking community control and probation the court sentenced appellant to concurrent terms in prison for Count I, as well as Count II. The latter was a misdemeanor for which appellant had initially been sentenced only to time served. We vacate the sentence as to Count II. Upon remand the court should enter a corrected sentence reflecting that it is on Count I only. Appellant does not need to be present for this clerical correction on Count I.
GUNTHER and STONE, JJ., concur.
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…of violation. “It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether.” N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 2002); see Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993) (holding revocation of probation may not be based upon violation not charged in affidavit); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997) (holding revocation of defendant’s probation based on violation not alleged…
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Myles Franklin Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997)…error. The finding regarding the mace de-' vice is improper for two independent reasons. First, it is improper to find a probationer has violated a condition of his probation that he has not been charged with violating. See, e.g., Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993). Thus, the court erred in revoking appellant’s probation for violating one condition when he was charged with violating another. Second, the State introduced no evidence, other than the arresting officer’s hearsay, that the devic…
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Costanz v. State, 740 So. 2d 71 (Fla. 4th DCA 1999)…rning the alleged violation, such as the nature, time, and place of the occurrence.” Freiheit v. State, 458 So. 2d 1172, 1173 (Fla. 4th DCA 1984). Furthermore, probation cannot be revoked on grounds not charged in the affidavit. See Joseph v. State, 615 So. 2d 833, 834 (Fla. 4th DCA 1993). Thus, the trial court erred in revoking the probation based on the May move. However, we find no error with regard to the trial court’s finding of ability to pay. When it “cannot [be] determine^] from the record whether t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- Burtless v. Pallero, 570 So. 2d 1140 (Fla. 4th DCA 1990)
- Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990)
- Earle v. State, 519 So. 2d 757 (Fla. 1st DCA 1988)
- Archie v. State, 558 So. 2d 183 (Fla. 3d DCA 1990)