ANTHONY COSTANZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that probation cannot be revoked on grounds not alleged in the affidavit of violation, but affirmed the finding of ability to pay.
The defendant appealed the revocation of his probation, which was based on moving without consent and failure to pay court-ordered sums. The affidavit…
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PER CURIAM.
The defendant appeals the trial court’s order revoking his probation for moving without consent and for failure to pay court ordered sums. The defendant argues the trial court erred by revoking his probation because the revocation was based on grounds not alleged in the affidavit of violation and he lacked the ability to pay.
The state filed an affidavit of violation alleging the defendant violated his probation by moving without consent on or about October 1, 1995; however, the trial court based its order of revocation on a move in May, 1995. Although an affidavit of violation is not required to comply with the same specificities as an information, it must “allege the basic facts concerning the alleged violation, such as the nature, time, and place of the occurrence.” Freiheit v. State, 458 So. 2d 1172, 1173 (Fla. 4th DCA 1984). Furthermore, probation cannot be revoked on grounds not charged in the affidavit. See Joseph v. State, 615 So. 2d 833, 834 (Fla. 4th DCA 1993). Thus, the trial court erred in revoking the probation based on the May move. However, we find no error with regard to the trial court’s finding of ability to pay.
When it “cannot [be] determine^] from the record whether the trial court would have revoked [the defendant’s] probation and imposed the same sentence based solely on the ... valid grounds” remaining, an appellate court must reverse and remand. Mathis v. State, 683 So. 2d 634, 637 (Fla. 4th DCA 1996). Because we cannot determine if the trial court would have imposed the same sentence, we reverse and remand for further proceedings. AFFIRMED in part; . REVERSED AND REMANDED in part.
GUNTHER, GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Kahli Ubiles v. State, 23 So. 3d 1288 (Fla. 4th DCA 2010)…of Ubiles’s probation and remand for further proceedings because the record does not make clear whether the trial court would have revoked his probation and imposed the same sentence based on the remaining probation violations. See Costanz v. State, 740 So. 2d 71, 72 (Fla. 4th DCA 1999). Affirmed in Part, Reversed in Part, and Remanded. HAZOURI and CIKLIN, JJ, concur.…
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Davis v. State, 48 So. 3d 176 (Fla. 4th DCA 2010)…remand for further proceedings because the record does not make clear whether the trial court would have revoked his probation and imposed the same sentence based on the remaining probation violation. See Ubiles, 23 So. 3d at 1292; Costanz v. State, 740 So. 2d 71, 72 (Fla. 4th DCA 1999). Reversed and Remanded for Farther Proceedings. TAYLOR and CIKLIN, JJ., concur. . It is not clear from the affidavit of violation of probation under which section of the theft statute the state was operating. It could have…
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Hollingshead v. State, 846 So. 2d 627 (Fla. 4th DCA 2003)…s a result of the discrepancy in dates, the mix-up amounts to nothing more than harmless error. An allegation of violation of probation need not be set forth with the same specificity required for an indictment or information. See Costanz v. State, 740 So. 2d 71, 72 (Fla. 4th DCA 1999); Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995). Nonetheless, even under the law applicable to indictments, appellant would not be entitled to a reversal. Setting forth the legal considerations that apply to this ty…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Still v. Polecat Indus., Inc., 683 So. 2d 634 (Fla. 3d DCA 1996)
- Freiheit v. State, 458 So. 2d 1172 (Fla. 4th DCA 1984)
- Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993)