TIMOTHY LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Lee challenges a probation modification order that imposed three alleged probation violations and added a 30-month prison sentence. The court reversed the modification and remanded because one violation was not properly proven, the prison sentence was illegal when imposed while probation remained active, and only two of the three alleged violations were supported by the record.
The court affirmed the violations of conditions 11 and 13 but reversed the finding of violation regarding condition 1 because North Carolina does not require written monthly reports from probationers. The court reversed the illegal 30-month prison sentence imposed while probation remained active, as probation cannot be modified to include a prison term under Florida law.
[1] A trial court errs in finding a probation violation for failing to file monthly reports when the probationer is supervised in a jurisdiction where such reports are not re…
[2] A trial court errs by sentencing a defendant to prison while their probation continues to run.
Previewing 2 of 4 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“it is undisputed that written monthly reports are not required of probationers supervised in that state”
Establishes that North Carolina probation requirements differ from Florida, making the condition 1 violation unsupportable under North Carolina law
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLee was on probation for two counts of lewd assault on a minor with three specified conditions: receiving substance abuse treatment (condition 11), re…
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STONE, Chief Judge.
We reverse an order of modification of probation. The sentencing portion of the order includes an illegal provision and, in addition, the court erred in finding a probation violation as to one of the three grounds relied upon. Appellant was charged with violating three conditions of his probation for two counts of lewd assault on a minor; condi tion 11, that he receive a substance abuse treatment; condition 13, that he receive mental health treatment; and condition 1, that he file monthly reports. The court’s order did not revoke Appellant’s probation but modified the probation and added a provision for a prison term.
With regard to the violations of conditions 11 and 13, we affirm. Although Appellant explained that he failed to attend and cooperate in treatment because of scheduling and transportation problems, the trial court found otherwise. There is record support for a conclusion that Appellant’s actions indicated an unwillingness to comply. See Miller v. State, 661 So. 2d 353 (Fla. 4th DCA 1995); Monroe v. State, 679 So. 2d 50 (Fla. 1st DCA 1996); Archer v. State, 604 So. 2d 561 (Fla. 1st DCA 1992).
The court erred in finding a violation of condition 1, as the state failed to prove a violation for failing to file monthly reports. Although filing monthly reports was a specified condition, Appellant’s probation was served in North Carolina with a North Carolina probation officer, and it is undisputed that written monthly reports are not required of probationers supervised in that state. Further, Appellant’s probation could not, as argued by the state, be violated for failing to report 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 prison sentence. The state concedes that the court erred by sentencing Appellant to prison while he remained on probation. See Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994). We remand for reconsideration of the modification order and for resentencing.
TAYLOR, J., and GLICKSTEIN, HUGH S., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alphonso Prosperity Smith v. Kearney, 802 So. 2d 387 (Fla. 4th DCA 2001)…corpus may be employed to secure the release of a person who is being unlawfully detained.”). At best, we conclude that in case 83-1877 the trial court imposed concurrent sentences of probation and incarceration, which is illegal. See Lee v. State, 717 So. 2d 1088, 1089 (Fla. 4th DCA 1998); Benjamin v. State, 705 So. 2d 126, 126 (Fla. 2d DCA 1998); Clemons v. State, 629 So. 2d 1067, 1068 (Fla. 2d DCA 1994). However, determining that the sentence is illegal does not mean that his custody was unlawful. While Sm…
Authorities Cited
- Archer v. State, 604 So. 2d 561 (Fla. 1st DCA 1992)
- Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995)
- Ovid Miller v. State, 661 So. 2d 353 (Fla. 4th DCA 1995)
- Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)
- Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992)
- Monroe v. State, 679 So. 2d 50 (Fla. 1st DCA 1996)
- Martin v. State, 691 So. 2d 1204 (Fla. 4th DCA 1997)