JOSE ONTIVEROS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that revocation of community control based solely on an arrest is improper, but affirmed the revocation based on other specific violations and remanded for a written order.
Appellant challenged the revocation of his community control, arguing his violations were not willful or substantial. The revocation was based in part…
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CAMPBELL, Acting Chief Judge.
Appellant challenges his judgment and sentence following the revocation of his community control. After a review of the record, we find no merit in his argument that his violations were neither wilful nor substantial and affirm the revocation based on appellant’s violations of condition M (failure to perform community service hours), and condition 12 (failure to remain confined to his approved residence) without discussion.
However, while the amended affidavit of violation alleged that appellant violated condition 5 (refrain from committing new law violations) by virtue of his arrest for driving without a valid driver’s license and for resisting an officer, the only evidence offered as to this violation at the revocation hearing was the testimony of community control officer Bell that appellant. was arrested while he was away from his residence without permission. It is improper to revoke probation solely on proof that the probationer has been arrested. See Hines v. State, 358 So. 2d 183 (Fla.1978); Manies v. State, 621 So. 2d 679 (Fla. 2d DCA 1993). Therefore, if revocation was based in part on violation of this condition, it was improper. Accordingly, we affirm revocation of appellant’s community control based upon violations of conditions M and 12. Additionally, because a written revocation order setting forth the specific conditions violated is not included in the record before us, and it does not appear that one was ever filed, we remand for entry of such an order in accordance with this opinion.
Affirmed and remanded with directions.
PARKER and WHATLEY, JJ., Concur.
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Robinson v. State, 907 So. 2d 1284 (Fla. 2d DCA 2005)…ondition 5 of his probation by “being arrested for Driving Under the Influence and being arrested for No Valid Driver’s License.” However, it is improper to revoke probation solely on proof that the probationer has been arrested. Ontiveros v. State, 746 So. 2d 1174, 1174 (Fla. 2d DCA 1999). As this court recently stated in Sharpston v. State, 895 So. 2d 1225, 1226 (Fla. 2d DCA 2005) (quoting Hines v. State, 358 So. 2d 183, 185 (Fla.1978)), “ ‘the Florida Statutes do not authorize, nor would our constitution pe…
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Sharpston v. State, 895 So. 2d 1225 (Fla. 2d DCA 2005)…eing arrested for petit theft; and Sharpston agreed. Not once was Sharpston asked whether he actually committed the crime. Therefore, we are compelled to reverse. See, e.g., Stevenson v. State, 843 So. 2d 1044 (Fla. 2d DCA 2003); Ontiveros v. State, 746 So. 2d 1174 (Fla. 2d DCA 1999); Manies v. State, 621 So. 2d 679 (Fla. 2d DCA 1993). We note that on remand, the State is not precluded from attempting to prove a violation based on the same circumstances as long as the period of supervision has not expired. See…
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Prince v. State, 903 So. 2d 1068 (Fla. 2d DCA 2005)…We reverse the trial court’s order and remand for further proceedings. Prince’s first claim alleges that her sentence is illegal because the trial court lacked authority to revoke her probation based solely on an arrest. Citing Ontiveros v. State, 746 So. 2d 1174 (Fla. 2d DCA 1999), Prince contends that an arrest alone is not a sufficient basis to revoke probation. . The trial court reviewed and denied this claim on its merits without regard for whether the claim is cognizable under rule 3.800(a).1 However,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Manies v. State, 621 So. 2d 679 (Fla. 2d DCA 1993)