STATE OF FLORIDA, APPELLANT,
v.
DAVID GRAY, APPELLEE
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Florida's appeal of a trial court order modifying community control conditions is dismissed because the state lacks appellate authority to challenge probation modifications under Florida law.
The state may not appeal an order modifying probation or community control conditions because modification does not constitute a sentence.
[1] The state lacks appellate authority to challenge an order modifying probation or community control conditions, as modification does not constitute a sentence appealable u…
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Join FLexlaw to unlock all legal intelligenceThe trial court found that the appellee violated his community control but modified rather than revoked the conditions of community control.…
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WARNER, Judge.
The state appeals from an order that it characterizes as a downward departure sentence, which was imposed after the court found that the appellee had violated his community control. Since the trial court modified the conditions of appellee’s community control but did not revoke it, we conclude that the state may not appeal from such an order. Section 948.06(1), Florida Statutes (1997), provides, in pertinent part, that after a probation violation hearing, the court may “revoke, modify, or continue the probation or community control.” Only where the court revokes probation must the court impose a sentence. See id. Even when an appellant admits a probation violation, the court is not required to revoke the probation and sentence the offender on the underlying charge. See id.
Pursuant to Florida Rule of Appellate Procedure 9.140(c)(1), the state can appeal an illegal sentence or a downward departure sentence. However, we can find no authority for the state to appeal a modification of probation since the court does not “sentence” a probationer when it modifies probation. We agree with State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986), that the rules permit only a defendant to appeal an order revoking or modifying probation; the rules do not allow the state to do so.
Dismissed.
GUNTHER and STEVENSON, JJ., concur.
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State v. Dreama Adea Bell, 854 So. 2d 686 (Fla. 5th DCA 2003)…ient evidence to support the reasons for departure. Another line of cases holds that the state lacks authority to appeal modifications of probation or community control. See, e.g., State v. Heddon, 840 So. 2d 439 (Fla. 5th DCA 2003); State v. Gray, 721 So. 2d 370 (Fla. 4th DCA 1998); State v. Blackman, 488 So. 2d 644 (Fla. 2d DCA 1986). [*690] From these two lines of cases, a consistent general rule emerges: upon a violation of probation or community control, the court has authority to “revoke, modify or con…
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Griffin v. State, 783 So. 2d 337 (Fla. 5th DCA 2001)…as prepared to continue. She testified that Griffin was amenable to rehabilitation. At the hearing, defense counsel asserted that the trial court had the authority to modify or continue Griffin’s probation. The state, however, citing State v. Gray, 721 So. 2d 370 (Fla. 4th DCA 1998), erroneously argued that the court did not have the discretion to' do so and stated that it would object to anything less than a jail sentence. The trial court accepted the state’s argument. The court expressed its reluctance to…
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State v. LaFAVE, 113 So. 3d 31 (Fla. 2d DCA 2012)…r the State to appeal either a modification or termination of probation because a modification or termination of probation does not result in the imposition of a sentence. See State v. Blackman, 488 So. 2d 644, 644 (Fla. 2d DCA 1986); State v. Gray, 721 So. 2d 370, 371 (Fla. 4th DCA 1998); see also State v. Russell, 67 So. 3d 1179 (Fla. 4th DCA 2011) (relying on Gray in dismissing a state appeal of an order modifying probation). In State v. Brooks, 890 So. 2d 503 (Fla. 2d DCA 2005), with facts uniquely simil…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Blackman, 488 So. 2d 644 (Fla. 2d DCA 1986)