DARRYL DONNELL DULANEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant challenges a final judgment and sentence based upon a jury verdict finding him guilty of possession of a firearm by a convicted felon. Appellant also challenges a final order revoking his probation. We affirm the judgment and sentence without further comment, but reverse the order revoking appellant’s probation which was based on charges not contained in the affidavit of the violation of probation.
Upon conviction of possession of a firearm by a convicted felon, the trial court found that appellant had violated his probation based on the conviction. The affi davit of violation, however, was based on entirely different charges. The state properly concedes that revocation of probation based on conduct not charged in the affidavit constitutes fundamental error. See B.T.G. v. State, 694 So. 2d 767, 769 (Fla. 1st DCA 1997); Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997). We, therefore, reverse the order revoking probation and remand to the trial court for further proceedings.
MINER, WOLF and PADOVANO, JJ., concur.
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Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)…leged in the charging document is a deprivation of the right to due process” constituting fundamental error. Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); see Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999); Dulaney v. State, 735 So. 2d 505 (Fla. 1st DCA 1999). By analogy, revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error. Additionally, it is reversible error to revoke probation on Condition (1) based on a purported v…
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…147 (Fla. 1st DCA 1997) (holding revocation of defendant’s probation based on violation not alleged in charging document is a deprivation of right to due process of law). Such error by the trial court constitutes fundamental error. Dulaney v. State, 735 So. 2d 505 (Fla. 1st DCA 1999) (where there has been revocation of probation for conduct not charged, the state has conceded that the error is fundamental); Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999) (holding revocation of probation on grounds nev…
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Haywood v. State, 987 So. 2d 1285 (Fla. 1st DCA 2008)…on uncharged grounds constitutes fundamental error. See Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999) (“Revocation of [*1288] probation on grounds never alleged in writing violates due process and is fundamental error.”); Dulaney v. State, 735 So. 2d 505, 506 (Fla. 1st DCA 1999); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003). Although appellant admitted during the revocation hearing that after June 22, 2006, he never spoke to hi…
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- Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)
- B.T.G. v. State, 694 So. 2d 767 (Fla. 1st DCA 1997)