JAMES ALBERT WHITTINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court reversed revocation of community control because the trial court's order did not specify which of five alleged violations it relied upon, and evidence supported only two of the five grounds.
A revocation order must specify which violation(s) support the revocation decision, and remand is required when the order is ambiguous as to the factual basis.
[1] A revocation of community control must be supported by clear specification of which alleged violation(s) form the basis for the revocation decision.
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Join FLexlaw to unlock all legal intelligenceWhittington was charged with five community control violations: failure to remain at approved residence, failure to obtain consent to change residence…
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PER CURIAM.
The defendant, James Albert Whittington, was charged by affidavit with the following •violations of his community control: (1) failure to remain at his approved residence, (2) failure to obtain consent to change his place of residence, (3) failure to perform 100 hours of community service, (4) failure to make a truthful report of two arrests, and, (5) failure to live without violating the law. Following a hearing in which the defendant contested all of the charges, the trial court found the defendant guilty and revoked his community control. The revocation order does not specify whether the court’s decision was based on some or all of the specific grounds alleged in the affidavit.
We conclude that the evidence is sufficient to sustain a finding that the defendant did not remain at his residence and that he failed to obtain consent to change his place of residence. The state concedes, and we agree, that the evidence is insufficient to sustain a revocation based on any of the remaining grounds. Because it is not clear whether the trial court would have revoked the defendant’s community control based on the two grounds that were proven, we must reverse and remand for consideration of this issue in the trial court. Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991).
Reversed and remanded.
WEBSTER, LAWRENCE and PADOVANO, JJ., concur.
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LeMASTER v. State, 765 So. 2d 259 (Fla. 1st DCA 2000)…Appellant’s community control based solely upon Appellant’s failure to remain confined to his approved residence on two separate occasions. Therefore, we reverse and remand for the trial court’s consideration of the issue. See Whittington v. State, 688 So. 2d 1035, 1036 (Fla. 1st DCA 1997) (citing Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)); Cobham v. State, 736 So. 2d 67 (Fla. 4th DCA 1999) (citing Thompson v. State, 710 So. 2d 80 (Fla. 4th DCA 1998)). REVERSED and REMANDED. BOOTH, MINER and VAN…
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Major Barnes v. State, 739 So. 2d 1181 (Fla. 1st DCA 1999)…ial emphasis on Mr. Barnes’s failure to attend alcohol abuse screening, we cannot say whether the trial court would have revoked his probation solely for failure to report to a probation officer. See Johnson, 695 So. 2d at 750; Whittington v. State, 688 So. 2d 1035, 1036 (Fla. 1st [*1183] DCA 1997); Gavins v. State, 587 So. 2d 487, 490-91 (Fla. 1st DCA 1991). Accordingly, we reverse the order revoking Mr. Barnes’s probation and remand for further proceedings consistent with this opinion. ALLEN, LAWRENCE, and…
Authorities Cited
- Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)