ROGER E. MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Martin appealed the trial court's modification of his probation conditions after he was acquitted of the substantive charges brought against him. The court erred by enhancing his probation based on a violation of law (contributing to delinquency of a minor) that was not charged in the affidavit alleging violation of probation, violating statutory procedures and double jeopardy protections.
No. The trial court erred in enhancing Martin's probation conditions based on conduct (contributing to delinquency of a minor) not charged in the affidavit of violation. Before probation can be enhanced with new conditions, a violation must be formally charged and proven pursuant to statutory procedures. Probation may not be enhanced based on conduct not charged in the affidavit alleging violation of probation.
[1] Probation may not be revoked or enhanced for conduct not charged in the affidavit alleging a violation of probation.
[2] Before probation can be enhanced by adding new conditions, a violation of probation must be formally charged and proven pursuant to statutory procedures.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Before probation can be enhanced by adding new conditions that a probationer must follow, a violation of probation must be formally charged and proven pursuant to the procedures in section 948.06, Florida Statutes (1995).”
Establishes the legal requirement that statutory procedures must be followed before any enhancement of probation conditions.
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Join FLexlaw to unlock all legal intelligenceIn May 1995, Martin was placed on probation for lewd assault or indecent act on a child. In September 1995, the state filed a violation of probation c…
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PER CURIAM.
In May, 1995, appellant, Roger Martin was placed on probation for several crimes, including a lewd assault or indecent act on a child under the age of 16 in violation of section 800.04(1), Florida Statutes (1995). In September, 1995, a violation of probation was filed charging Martin with violating his probation by having carnal intercourse with a person under the age of 18 in violation of section 794.05, Florida Statutes (1995), and interfering with custody of a child contrary to section 787.03, Florida Statutes (1995).
The state also charged Martin with the substantive offenses in a separate criminal ease. After a two-day trial, the jury found Martin not guilty after very brief deliberations. The court tried the violations of probation simultaneously with the substantive charges. Although the trial court orally pronounced that Martin had not violated his probation, the court amended the terms of probation to prohibit Martin from having any unsupervised contact with a child under the age of 18. In its written order, the court reiterated that the state had not proven carnal intercourse or interference with custody as charged in the affidavit of violation, but held that Martin violated a separate criminal statute, section 827.04(3), Florida Statutes (1995), by contributing to the delinquency of a child.
The state concedes that the order modifying Martin’s probation must be vacated. Before probation can be enhanced by adding new conditions that a probationer must follow, a violation of probation must be formally charged and proven pursuant to the procedures in section 948.06, Florida Statutes (1995). Clark v. State, 579 So. 2d 109, 110-11 (Fla.1991). Probation may not be revoked or enhanced for conduct not charged in the affidavit alleging a violation of probation. Harrington v. State, 570 So. 2d 1140, 1142 (Fla. 4th DCA 1990); Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984). Therefore, the court erred in enhancing probation since the affidavit of violation failed to allege that Martin violated section 827.04(3), by contributing to the delinquency of a minor. Enhancing the terms of probation when the court specifically finds no violation of the charges in the affidavit is contrary to the double jeopardy prohibition against multiple punishments for the same offense. Lippman v. State, 633 So. 2d 1061, 1064 (Fla.1994).
The May 1, 1996 order modifying Martin’s probation is vacated.
WARNER, POLEN and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Casterline v. State, 703 So. 2d 1071 (Fla. 2d DCA 1997)…rida Statutes (1991), “[a]bsent proof of a violation, the court cannot change an order of probation by enhancing the terms.” Lippman v. State, 633 So. 2d 1061, 1064 (Fla.1994); Clark v. State, 579 So. 2d [*1073] 109, 110 (Fla.1991); Martin v. State, 691 So. 2d 1204 (Fla. 4th DCA 1997). Probation is a sentence in Florida and the double jeopardy provision includes protection against enhancements or extensions of conditions of probation. Lippman, 633 So. 2d at 1064. Even when a non-violating probationer agrees t…
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Eddie v. State, 933 So. 2d 570 (Fla. 1st DCA 2006)…t be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993). Clark v. State, 579 So. 2d 109, 110-11 (Fla.1991); Mundorff v. State, 890 So. 2d 1234 (Fla. 1st DCA 2005); Martin v. State, 691 So. 2d 1204, 1205 (Fla. 4th DCA 1997); Delancey v. State, 653 So. 2d 1062, 1064 (Fla. 4th DCA 1995). In this case, Appellant was never charged with a violation of probation before his probationary term was extended; thus, the trial court was without subject mat…
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LEE v. State, 717 So. 2d 1088 (Fla. 4th DCA 1998)…port every month in person, as this violation was not included in the charges against him and Appellant was not on notice that he would be called upon to defend on this issue. See Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995); Martin v. State, 691 So. 2d 1204 (Fla. 4th DCA 1997); Palmer v. State, 603 So. 2d 535, 536 (Fla. 4th DCA 1992). Appellant’s sentence is reversed as illegal. The trial court’s order provided that Appellant’s existing probation was to continue, as modified, and added a thirty month…
Authorities Cited
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- Burtless v. Pallero, 570 So. 2d 1140 (Fla. 4th DCA 1990)
- Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984)
- Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990)