EDWARD L. COLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Cole appeals a trial court order modifying his probation conditions six years after sentencing by prohibiting contact with his ex-wife and children. The Florida appellate court reversed, holding that the addition of new restrictions constituted an enhancement of punishment rather than a permissible modification, violating double jeopardy protections.
The court reversed, holding that the new contact restrictions constituted an enhancement of the original sentence rather than a modification. A trial court must first determine that there has been a violation of probation before it can enhance or increase conditions. Since the original probation order contained no provision that could be interpreted as including the new contact restriction condition, the trial court's action violated double jeopardy protections.
[1] A trial court may modify the conditions of probation at any time, but only after determining that a violation of probation has occurred.
[2] Enhancing the conditions of probation without a finding of a probation violation constitutes an impermissible increase in punishment.
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“Although the trial court has the right to rescind or to modify the terms and conditions of probation at any time, a court must first determine that there has been a violation of probation before it can enhance or increase the conditions.”
Establishes the fundamental requirement that probation violations must precede any enhancement of conditions
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Join FLexlaw to unlock all legal intelligenceIn 1992, Cole pleaded nolo contendere to attempted sexual battery and was sentenced to 15 years imprisonment followed by 15 years of probation. Six ye…
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PARKER, Acting Chief Judge.
Edward L. Cole appeals the order of the trial court which modified the conditions of his probation six years after the trial court originally entered judgment. We reverse.
In 1992 Cole pleaded nolo contendere to attempted sexual battery. The trial court sentenced him to fifteen years in prison followed by fifteen years of probation. Cole continually served that sentence until September 2, 1998, when he was brought before the court on the State’s motion to clarify Cole’s sentence. The State asked the court to modify the conditions of Cole’s probation by forbidding Cole from having any contact with his ex-wife, son, and daughter. The trial court granted the State’s motion.
Although the trial court has the right to rescind or to modify the terms and conditions of probation at any time, a court must first determine that there has been a violation of probation before it can enhance or increase the conditions. See Lippman v. State, 633 So. 2d 1061, 1064 (Fla.1994); Casterline v. State, 703 So. 2d 1071, 1072 (Fla. 2d DCA 1997). In Lippman, the supreme court determined that it was error for the trial court to increase Lipp-man’s conditions of probation by adding the requirement that he not have any contact with the minor victim or his minor siblings because it constituted an additional punishment proscribed by the double jeopardy clause. Id. at 1062. The court determined that the addition was not a modification, but instead an enhancement. Id. at 1063. The court did state that if there was a provision in the original order which could be interpreted to include this condition, such as following the recommendations of a psychiatrist, then it would be viewed as a modification. Id. at 1063 n. 2.
In this case, the original order of probation does not contain anything which could be interpreted as having a connection with this new condition of restricting contact with his ex-wife, son, and daughter. We find no provision in this record requiring Cole to undergo psychiatric treatment or any restrictions on having contact with them, which could be interpreted as having a connection with this newly-imposed condition. The State contends that the order merely clarifies the conditions to which Cole originally agreed; however, there is nothing in this record to support that contention. Therefore, we determine that the new condition constitutes an enhancement of the original sentence rather than a modification. Accordingly, we reverse the trial court’s final order enhancing Cole’s conditions of probation.
Reversed and remanded.
GREEN, J., and DANAHY, PAUL W., (Senior) Judge, Concur.
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Blair v. State, 805 So. 2d 873 (Fla. 2d DCA 2001)…te, 633 So. 2d 1061, 1064 (Fla.1994). An enhancement of probation where there is no proof of a violation of probation is a violation of “the double jeopardy prohibition against multiple punishments for the same offense.” Id.; see also Cole v. State, 745 So. 2d 1001, 1002 (Fla. 2d DCA 1999). Under Lippman, the test as to whether the modification of a condition of probation is an improper enhancement turns on whether the change is more restrictive than the original condition. Lippman, 633 So. 2d at 1064. An ori…
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Gearhart v. State, 885 So. 2d 415 (Fla. 5th DCA 2004)…(Fla. 2d DCA 1997). An enhancement of probation where there is no proof of a violation of probation contravenes “the double jeopardy prohibition against multiple punishments for the same offense.” Lippman, 633 So. 2d at 1064; see also Cole v. State, 745 So. 2d 1001, 1002 (Fla. 2d DCA 1999). In Clark, the supreme court held that before the probationary term can be extended, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge following…
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King v. State, 990 So. 2d 1191 (Fla. 5th DCA 2008)…l violation. Lippman v. State, 633 So. 2d 1061, 1064 (Fla.1994); Clark v. State, 579 So. 2d 109, 110-11 (Fla.1991); Gearhart v. State, 885 So. 2d 415, 417 (Fla. 5th DCA 2004); Garrison v. State, 775 So. 2d 340, 341 (Fla. 2d DCA 2000); Cole v. State, 745 So. 2d 1001, 1002 (Fla. 2d DCA 1999); Casterline v. State, 703 So. 2d 1071, 1072 (Fla. 2d DCA 1997). King contends that he could not have violated Special Condition 2 because he was incarcerated at the time he was alleged to have committed the violation and bec…
Authorities Cited
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Casterline v. State, 703 So. 2d 1071 (Fla. 2d DCA 1997)