ROBERT EUGENE BENNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it was error to find a probation violation based on a conviction while a motion to withdraw the plea was pending.
Robert Bennett appealed an order finding him in violation of probation due to a battery conviction. Bennett argued his conviction was pending as he ha…
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PER CURIAM.
Robert Bennett appeals an order of the lower court finding him in violation of probation based on a conviction for battery. We reverse and remand.
At the violation of probation hearing, Bennett informed the lower court that he had filed a motion to withdraw his no contest plea entered in the battery case. Bennett argued that because the motion had not been ruled upon, his battery conviction was “pending.” The lower court rejected this argument finding Bennett violated probation based on the conviction. One week after the notice of appeal was filed in this case, Bennett was permitted to withdraw his plea in the battery case.
Under these unique circumstances, it was error for the lower court to adjudicate Bennett guilty of violating probation based on the battery conviction while the motion to withdraw plea was pending. The lower court should have waited for the motion to be resolved before ruling. Accordingly, we reverse and remand for a new violation of probation hearing.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur.