SAMUEL SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Samuel Smith appeals the revocation of his community control and imposed sentence. The appellate court found that the state failed to establish some violations but upheld the revocation based on Smith's failure to remain confined to his residence, while vacating the sentence for reconsideration on remand.
The court affirmed the revocation of community control based on Smith's violation of the condition to remain confined to his residence, but reversed the findings regarding violations of the public service schedule, supervisor instructions, and court costs payment conditions. The sentence was vacated for reconsideration because it is unclear whether the trial court would have imposed the same sentence based solely on the confinement violation.
[1] A written order revoking community control must conform to the trial court's oral pronouncement.
[2] The state bears the burden of proving a willful and substantial violation of community control conditions.
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Join FLexlaw to unlock all legal intelligence“the state failed to carry its burden to establish a willful and substantial violation of the community contol conditions directing Smith to submit a truthful public service schedule, to follow his supervisor's instructions and to pay court costs”
Establishes that the state did not meet its burden of proof for three of the five alleged violations
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Join FLexlaw to unlock all legal intelligenceSmith was subject to community control with conditions including submitting a truthful public service schedule, following supervisor instructions, pay…
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SHEVIN, Judge.
Samuel Smith appeals orders of revocation of community control finding that Smith vio lated five community control conditions, and imposing sentence. First, as an initial point, we agree with the state’s proper concession that the trial court’s written order finding that Smith failed to complete the community service condition does not conform with its oral pronouncement finding that Smith completed the required hours. See Corona v. State, 642 So. 2d 667 (Fla. 3d DCA 1994). Therefore, the court must correct the order on remand.
Next, we find that the state failed to carry its burden to establish a willful and substantial violation of the community contol conditions directing Smith to submit a truthful public service schedule, to follow his supervisor’s instructions and to pay court costs. See Howard v. State, 484 So. 2d 1232 (Fla.1986); Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992); Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983). Therefore, that portion of the revocation order is reversed.
However, as Smith concedes, the record supports the trial court’s finding that Smith violated his community control by failing to remain confined to his residence. See, e.g., Allen v. State, 666 So. 2d 259 (Fla. 4th DCA 1996). A violation of this condition is sufficient to support revocation of community control. See Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995). Despite our ruling that only one of the violations is valid, we affirm the order on this ground as the court’s statements at the hearing demonstrate that it would have revoked Smith’s community control based on this violation alone — failure to remain confined to his residence. See, e.g., Haygood v. State, 687 So. 2d 318 (Fla. 4th DCA 1997); Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987).
However, it is not clear whether the court would have imposed the same sentence based solely on that violation. See Smith v. State, 664 So. 2d 72 (Fla. 3d DCA 1995); Astore v. State, 618 So. 2d 790 (Fla. 2d DCA 1993); Jones v. State, 611 So. 2d 26 (Fla. 1st DCA 1992). We, therefore, vacate Smith’s sentence. On remand, the trial court may impose the same sentence or exercise its discretion to impose a reduced sentence. See Royster v. State, 691 So. 2d 1196 (Fla. 4th DCA 1997); Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994).
Accordingly, we affirm the order in part, reverse in part, and vacate the sentence. We remand the cause for correction of the revocation order and reconsideration of the sentence.
Affirmed in part, reversed in part, and cause remanded with directions.
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Citator
Cited By (12 total)
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Dante Mortel McCRAY v. State, 754 So. 2d 776 (Fla. 3d DCA 2000)…eover, the willful and substantial nature of the violation must be supported by the greater weight of the evidence. See Bissman v. State, 746 So. 2d 489, 490 (Fla. 2d DCA 1999); Jones v. State, 744 So. 2d 537, 538 (Fla. 2d DCA 1999); Smith v. State, 705 So. 2d 1033, 1034 (Fla. 3d DCA 1998). McCray’s failure to be confined at his home at the prescribed hour due to the unexpected breakdown of his car cannot be deemed a willful violation of his community control. See Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA…
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Mathis v. State, 51 So. 3d 1250 (Fla. 2d DCA 2011)…sentence and remand for reconsideration of the sentence. On remand, the trial court may impose the same sentence or exercise its discretion to impose a reduced sentence. See Johnson v. State, 890 So. 2d 490, 493 (Fla. 5th DCA 2004); Smith v. State, 705 So. 2d 1033, 1034 (Fla. 3d DCA 1998). Affirmed in part, reversed in part, and remanded with directions. SILBERMAN and MORRIS, JJ., Concur. . There is no merit to Mathis’s claim that he is entitled to a new probation hearing because portions of the transcript…
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Matthews v. State, 897 So. 2d 523 (Fla. 3d DCA 2005)…[the remaining] violation”). Affirmed in part, reversed in part, and remanded with instructions. . On remand, the trial court may, of course, impose either the same sentence or exercise its discretion to impose a reduced sentence. Smith v. State, 705 So. 2d 1033, 1034 (Fla. 3d DCA 1998).…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992)
- Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987)
- Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983)
- Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995)
- Corona v. State, 642 So. 2d 667 (Fla. 3d DCA 1994)
- Altas Allen v. State, 666 So. 2d 259 (Fla. 4th DCA 1996)
- Haygood v. State, 687 So. 2d 318 (Fla. 4th DCA 1997)
- Howard v. State, 484 So. 2d 1232 (Fla. 1986)
- Ware v. Walt Disney World Co. & Fla. Unemployment Appeals Comm'n, 644 So. 2d 602 (Fla. 2d DCA 1994)
- Vezina v. State, 644 So. 2d 602 (Fla. 1st DCA 1994)