RODNEY JOHNSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the probation revocation order was fundamentally erroneous and must be vacated, but affirmed the community control revocation and prison sentence.
Appellant appealed orders revoking community control and probation, and a prison term. The trial court revoked probation without a formal charge being…
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[*263] PER CURIAM.
Appellant, Rodney Johnston, appeals from written orders revoking community control and probation, and from a seven-year prison term. We affirm in part and reverse in part.
Appellant correctly argues that the order revoking probation should be vacated because no formal charge of violation of probation had been filed. This issue may be raised for the first time on appeal because it rises to the level of fundamental error. Sanford v. Rubin, 237 So. 2d 134 (Fla.1970). Accordingly, the trial court’s order revoking Appellant’s probation is reversed.
However, we affirm the written order revoking Appellant’s community control and the seven-year prison term. We find harmless the error on the part of the trial judge in mistakenly basing Appellant’s sentence on four, rather than three, probation violations, because Appellant’s sentence was still within the permitted range for one having three prior probation violations. To rectify this error, the case is remanded to the trial judge ⅛ order that the court may correct the guidelines seoresheet to reflect the proper number of violations,
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
GLICKSTEIN and DELL, JJ„ and OFTEDAL, RICHARD L., Associate Judge, concur.
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Sampson v. State, 903 So. 2d 1055 (Fla. 2d DCA 2005)…s in the case file. Sampson contends that the failure to file the formal charge of violation is fundamental error that may be raised for the first time on appeal, citing Carmichael v. State, 834 So. 2d 421 (Fla. 2d DCA 2003), and Johnston v. State, 684 So. 2d 262 (Fla. 4th DCA 1996), in support of his argument. Although we agree that the failure to file the affidavit was error, we disagree that the error was fundamental under the facts of this case. In Reed v. State, 837 So. 2d 366 (Fla.2002), our supreme co…
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Makenson Saintiler v. State, 109 So. 3d 303 (Fla. 4th DCA 2013)…on orders, but affirm on all other issues raised by appellant. We reverse the revocation of appellant’s probation in Case Number 07-12673CF10A because no formal affidavit of violation of probation was ever filed in that case. See Johnston v. State, 684 So. 2d 262, 263 (Fla. 4th DCA 1996) (holding that an order revoking probation should be vacated if no formal charge of violation of probation has been filed, and that this issue may be raised for the first time on appeal as fundamental error). We have consider…
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Carmichael v. State, 834 So. 2d 421 (Fla. 2d DCA 2003)…no affidavit of violation appears in the record. We reverse. An order revoking probation should be vacated if no formal charge of violation of probation has been filed, and this issue may be raised for the first time on appeal. Johnston v. State, 684 So. 2d 262 (Fla. 4th DCA 1996). Here, no affidavit of probation appears in the record, and the Highlands County clerk of circuit court has filed a “certificate of non-existence,” stating that “a diligent search has been made for the Affidavit of Violation of…
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- Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970)