WILLIE NICHOLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot modify a probation order to add new conditions, such as a fine payment, absent proof of a violation of the existing probation terms.
Willie Nichols was convicted of drug offenses and sentenced to prison followed by probation, with a mandatory fine. The fine payment was not initially…
The full statement of facts, procedural history, and disposition for this case are member content.
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PARKER, Judge.
Willie Nichols appeals the trial court’s order which modified his probation to include payment of a $50,000 fine. Because the order modifying the probation was error, we reverse.
Nichols was convicted of two counts of delivery of cocaine and one count of trafficking in cocaine. The court sentenced Nichols to concurrent sentences of five years in prison to be followed by two years’ probation. The court also imposed the mandatory $50,000 fine for the trafficking offense. The court, however, never orally pronounced that payment of the fine was a condition of probation, and the Order of Probation did not list payment of the fine as a condition of probation. While Nichols was serving his probation, his probation officer filed an affidavit of violation of probation, stating that Nichols failed to comply with the instructions of the probation officer to pay $50 per month toward the $50,000 fine. The trial court thereafter modified Nichols’s probation to include the condition that he pay the $50,000 fine before his release from probation.
We conclude that Nichols did not violate his probation, as the affidavit alleged, because the payment of the fine was never made a condition of probation. Further, the trial court erred in modifying the probation order to include the condition. Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms. See Lippman v. State, 633 So. 2d 1061 (Fla.1994); Clark v. State, 579 So. 2d 109 (Fla.1991). We, therefore, reverse the Amended Order of Modification of Probation.
DANAHY, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kiriazes v. State, 798 So. 2d 789 (Fla. 5th DCA 2001)…ition of probation was required to be made within sixty days. The court reversed the order with directions that the trial court strike the special condition of probation. In a case with a little different twist, the trial court in Nichols v. State, 672 So. 2d 825 (Fla. 2d DCA 1995), imposed the statutorily mandated fine of $50,000 for the [*794] defendant’s trafficking offense, but failed to state orally or to include in the written probation order the fact that payment of the fine was a condition of probati…
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Suliany Ivette Garcia-Medina v. State, 135 So. 3d 1119 (Fla. 2d DCA 2013)…nnot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing. See also Nichols v. State, 672 So. 2d 825, 825 (Fla. 2d DCA 1995) (“Absent proof of a violation of probation, a trial court cannot modify an order of probation by enhancing its terms.”); Eddie v. State, 933 So. 2d 570, 571 (Fla. 1st DCA 2006) (“Before probation may be enhanced, either by ex…
Authorities Cited
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Clark v. State, 579 So. 2d 109 (Fla. 1991)