ROBERT NELSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's revocation of probation was reversed because the state failed to prove the defendant violated the charged condition, as evidence showed he pawned an item at 5:20 p.m. when he was permitted to be away from his residence until 6:00 p.m.
Probation cannot be revoked based on a violation of a specific condition when the evidence fails to establish that violation, and revocation cannot be based on uncharged infractions.
[1] Probation revocation cannot be based on violation of a condition not charged in the affidavit of violation, even if evidence suggests other infractions occurred.
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Join FLexlaw to unlock all legal intelligenceNelson was on probation with a condition requiring him to remain confined to his approved residence except for one half hour before and after his appr…
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PER CURIAM.
The trial court revoked appellant’s probation and sentenced him to prison for violating condition J9 of his probation which required that appellant “remain confined to [his] approved residence except for one half hour before and after [his] approved employment, public service work or any other special activities approved by [his] community control officer.” The evidence showed that appellant worked at a grocery store until 5:30 p.m. and was thus required to be home by 6:00 p.m. As proof of a violation of this condition the state offered a document which evidenced that he pawned an item at a pawn shop at 5:20 p.m.
Thus, it is clear from the time, appellant did not violate the provision cited, as the evidence fails to show that he was not in his residence by 6:00 p.m. While appellant might have violated another provision of probation, the state did not charge him with any other infractions, and probation cannot be revoked on grounds not charged in the affidavit of violation. See Joseph v. State, 615 So. 2d 833, 834 (Fla. 4th DCA 1993).
Therefore, since there is no evidence to support the conclusion that appellant violated condition J9, we reverse. See Anderson v. State, 711 So. 2d 106, 108 (Fla. 4th DCA 1998). We remand for reinstatement of appellant’s probation.
WARNER, C.J., SHAHOOD and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Burt v. State, 931 So. 2d 1005 (Fla. 3d DCA 2006)…st prepare a written order on the violations on remand. Rucker v. State, 890 So. 2d 254 (Fla. 2d DCA 2004); Watson v. State, 807 So. 2d 166 (Fla. 3d DCA 2002). Affirmed in part; reversed in part; and remanded. . Defendant cites Nelson v. State, 753 So. 2d 658 (Fla. 4th DCA 2000), where the court held that a defendant's visit to a pawn shop at 5:20 p.m., when he was permitted to remain at work until 5:30 p.m., was not a basis for revocation under a provision that required defendant to “remain confined to…
Authorities Cited
- Anderson v. State, 711 So. 2d 106 (Fla. 4th DCA 1998)
- Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993)