ROBERT M. ADICKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Probation violation affidavit must be dismissed where the Department of Corrections gave affirmative misadvice that the defendant was not on probation, as any violation cannot be willful without knowledge of the probation condition.
A probation violation cannot be willfully committed when the Department of Corrections affirmatively misadvised the defendant that he was not on probation.
[1] A probation violation affidavit must be dismissed when the Department of Corrections affirmatively misadvised the defendant that he was not on probation, as willfulness c…
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Join FLexlaw to unlock all legal intelligence“Before a trial court can revoke a defendant's probation, the state must prove by a preponderance of the evidence that the defendant willfully violated a substantial condition of his probation.”
Standard for probation revocation cited from Crume v. State
Robert Adickes was sentenced to ten years imprisonment for violating probation. Upon his prior release from prison, he was told he was not on probatio…
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GOSHORN, Judge.
Robert Adickes was sentenced to a ten-year prison term upon violation of probation. He appeals the denial of his motion to dismiss the violation of probation affidavit, having reserved his right to do so when he pled no contest to violating probation. Adickes contends that the affidavit should have been dismissed because any violation was not willful; he was told upon his prior release from prison that he was not on probation, despite his contentions otherwise and his attempts to enroll in a drug treatment program as a condition thereof. See, e.g., Crume v. State, 703 So. 2d 1216, 1217 (Fla. 5th DCA 1997) (“Before.a trial court can revoke a defendant’s probation, the state must prove by a preponderance of the evidence that the defendant willfully violated a substantial condition of his probation.”). The Department of Corrections does not dispute that it gave “affirmative misadvice,” describing the error as “administrative oversight.” We agree with Adickes that these facts do not support a finding of willfulness and order the dismissal of the affidavit of probation violation.
Adickes seeks reinstatement of his original ten-year probation term with credit for time previously served on probation, to follow his release from prison on the sentences he is currently serving on other offenses. .The State does not oppose the relief sought. Accordingly, we reverse and remand for entry of an order reinstating Adickes’s ten-year probation term in Case No. CR9H1617, with credit for time Adickes was previously on probation in that case.
SENTENCE VACATED; REVERSED AND REMANDED.
GRIFFIN, C.J., and PETERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morris v. State, 727 So. 2d 975 (Fla. 5th DCA 1999)…Florida Parole and Probation Commission, 414 So. 2d 658 (Fla. 1st DCA 1982). This is because a criminal case must be proven beyond a reasonable doubt and a probation violation need only be proven by a preponderance of the evidence. Adickes v. State, 712 So. 2d 815 (Fla. 5th DCA 1998); Crume v. State, 703 So. 2d 1216 (Fla. 5th DCA 1997). At the violation of probation hearing, the trial court stated that it was sentencing Morris to five years in prison for case no. 92-12098. The written order in the record mis…
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James v. State, 98 So. 3d 618 (Fla. 2d DCA 2012)…rance of the evidence that the defendant willfully violated a substantial condition of his probation. See, e.g., Tirado v. State, 69 So. 3d 1005, 1006 (Fla. 2d DCA 2011); Lynom v. State, 816 So. 2d 1218, 1221 (Fla. 2d DCA 2002). In Adickes v. State, 712 So. 2d 815, 816 (Fla. 5th DCA 1998), the Fifth District reversed a revocation of probation when the evidence showed that Adickes had been explicitly told by the Department of Corrections that he was not on probation despite his belief to the contrary. In doing…
Authorities Cited
- Kesanic Crume v. State, 703 So. 2d 1216 (Fla. 5th DCA 1997)