JOHN L. BURTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John L. Burton appealed the revocation of his probation for theft of an automobile, challenging the sufficiency of the affidavit alleging violation. The court reversed the revocation order, holding that the affidavit and revocation order failed to identify with requisite specificity what law Burton violated or what probation conditions he breached, violating due process requirements.
No. The affidavit and revocation order violated due process by failing to identify with requisite specificity what law was allegedly violated or what facts constituted a crime. The court reversed the revocation order, holding that due process requires notice of what law a probationer is alleged to have violated when revocation is sought on account of a new offense, and that the factfinder must set forth the evidence relied upon and reasons for revocation.
[1] Revocation of probation requires written notice of the alleged violation, affording the probationer minimal due process.
[2] An affidavit alleging probation violation must state the basic facts of the violation, including its nature, time, and place.
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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.”
Establishes the standard for sufficiency of probation violation affidavits under Florida law
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Join FLexlaw to unlock all legal intelligenceBurton was serving a split sentence for automobile theft with probation conditions. An affidavit alleging probation violation stated only that Burton …
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PER CURIAM.
The appellant asks us to overturn the order revoking his probation and recommitting him to the Department of Corrections to serve the remainder of a split sentence imposed for the theft of an automobile. We conclude that the affidavit alleging violation of probation and the order of revocation fail to identify with the requisite specificity a violation of the conditions of appellant’s probation, and reverse on those grounds. Because we find these issues dispositive, we do not address other issues the appellant raises.
Revocation of probation entails a serious loss of liberty which requires that the probationer be afforded the essential elements of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Among the minimal requirements of due process in a revocation proceeding are written notice of the alleged violation and, in the event of revocation, a written report by the finder of fact setting forth the evidence of violation and the reasons for revocation. Id.
Without elaboration, the affidavit for violation of probation in the instant case alleges that the appellant
has not properly conducted himself, but has violated the conditions of Ms probation in a material respect by violation of condition(s):
I. (5) By failing to live and remain at liberty without violating any law, in that on or about September 3, 1992, in Escambia County, Florida, the aforesaid did unlawfully commit a disorderly act.
Defense counsel moved to dismiss the affidavit alleging violation of probation, arguing that the affidavit failed to allege that Burton had violated any law. The trial judge denied the motion to dismiss and revoked the appellant’s probation after a hearing.
“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 v. State, 358 So. 2d 183, 185 (Fla.1978). Although the allegation need not be set forth with the same specificity as required for a criminal indictment or information, due process requires notice, when revocation is sought on account of a new offense, of what law the probationer is alleged to have violated. Id.
Neither the affidavit alleging violation of probation nor the order revoking probation names a criminal offense, cites any criminal statute purportedly violated, or sets forth facts which constitute a crime. As the basis for the violation of probation, the order of revocation sets out only that the appellant
has not properly conducted himself but has violated the conditions of Ms supervision in a material respect by violation of eondition(s): I. (5) as cited in the Affidavit dated September 14, 1992.
The order of revocation rests on a finding that the allegations in the affidavit of revocation were proven, but does not allude to the evidence or cure the deficiencies in the affidavit. At a minimum, due process requires “ ‘a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’” Gagnon, 411 U.S. at 786, 93 S.Ct. at 1762, quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (alteration in original). We reverse the order revoking probation and sending the appellant back to prison, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
BOOTH, ALLEN and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)…your Probation Officer on the form provided for that purpose.” “[P]robationers are entitled to notice ‘of what law the probationer is alleged to have violated.’ ” Andrews v. State, 693 So. 2d 1138, 1141 (Fla. 1st DCA 1997) (quoting Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995)). “[T]he language used in a condition of probation is determinative of a probationer’s duties and responsibilities while on probation.” Stanley v. State, 922 So. 2d 411, 414 (Fla. 5th DCA 2006). By its plain words, this cond…
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Myles Franklin Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997)…violating one crime and have his probation revoked for violating another, see, e.g., Evans v. State, 409 So. 2d 1078 (Fla. 4th DCA 1981), probationers are entitled to notice “of what law the probationer is alleged to have violated.” Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995). In this case, the affidavit recited no factual basis for its conclusion that appellant had acted as a principal in the first degree to aggravated battery. Accessory after the fact is a separate crime from aggravated batter…
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Widmer v. State, 697 So. 2d 545 (Fla. 1st DCA 1997)…ecific evidence relied on or the particular violation or violations. Black v. Romano, 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), indicates that a probationer is entitled to a written statement as to these matters. See also Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995). The challenged revocation order is therefore reversed, and the case is remanded. MINER and LAWRENCE, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973)
- Hines v. State, 358 So. 2d 183 (Fla. 1978)