FRANK JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Johnson, on probation, committed battery and had his probation revoked and was sentenced to prison. The appellate court affirmed the revocation but vacated the sentence and remanded because the trial court erred in denying a competency hearing motion without first conducting an evaluation.
The probation revocation was proper and affirmed. However, the trial court erred in denying the competency hearing motion without first evaluating the defendant's mental competency before sentencing. The sentence was vacated and the case remanded for a competency hearing.
[1] A court's erroneous statement regarding a probation violation not charged in the affidavit of violation does not require reversal if it did not influence the decision to…
[2] A trial court errs by denying a motion for a competency hearing when there are reasonable grounds to believe the defendant is not mentally competent to proceed, even if t…
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“We find from the record clear evidence to support the court's finding that appellant had wilfully violated a condition of his probation as charged.”
Establishes that the probation violation itself was properly supported by evidence
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was on probation when he committed a battery on his girlfriend. At the revocation hearing, Johnson testified in a manner that was described as…
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OWEN, WILLIAM C., Jr., Senior Judge.
Appellant, while on probation, committed a battery on his girlfriend, resulting in revocation of probation and sentencing to state prison on the underlying offense. We affirm the revocation but vacate the sentence and remand for further proceedings.
We find from the record clear evidence to support the court’s finding that appellant had wilfully violated a condition of his probation as charged. Appellant argues here, however, that the court erred in also finding that appellant had wilfully violated a condition of probation for which he was not charged. That issue arises from the fact that the court, after finding that appellant had violated the condition charged in the affidavit, made the passing observation that appellant had violated another condition, i.e., he had violated the “no contact” provision (a violation not charged in the affidavit of violation). The state concedes that the court’s observation in this respect was erroneous since the “no contact” provision in the order of probation was .as to named persons other than the girlfriend. It is apparent that this passing comment, though factually erroneous, did not enter into the court’s previously stated decision to revoke probation, and, therefore, is not a basis for reversal.
Appellant testified at the hearing. Prior to sentencing, defense counsel moved for a competency hearing based, she asserted, on appellant’s in-court testimony.1 The court, in denying that motion, stated, “I guess they can do that upstate.” We take that response to indicate the court’s view that there was reasonable grounds to believe that the defendant was not mentally competent to proceed and that he may require an evaluation, but that such could be done in prison following sentencing. This is error. See Finkelstein v. State, 574 So. 2d 1164 (Fla. 4th DCA 1991). We vacate appellant’s sentence and remand for a competency hearing as provided in Florida Rule of Criminal Procedure 3.210(b).
Revocation affirmed; sentence vacated and remanded.
FARMER and KLEIN, JJ., concur. . While we acknowledge that the cold record of a person's in-court testimony may not necessarily give a dependable picture of his or her competency, appellant's testimony was somewhat bizarre to say the least.
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MacHin v. State, 267 So. 3d 1098 (Fla. 4th DCA 2019)
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Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010)…pplying this concept in the context of post-arrest silence, if a defendant raises the issue of his own post-arrest silence, the State may respond. See United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988); Ricardo v. State, 756 So. 2d 215, 216 (Fla. 4th DCA 2000); Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). However, the extent and content of the State’s response is limited to a fair comment on the evidence of silence raised by the defendant. See Ricardo, 756 So. 2d at 216…
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Davenport v. State, 858 So. 2d 355 (Fla. 1st DCA 2003)…ause the trial court failed to refute the appellant’s claim with record attachments, we reverse and remand for an evi-dentiary hearing or the further attachment of record portions that conclusively refute the appellant’s claim. See Ricardo v. State, 756 So. 2d 215 (Fla. 4th DCA 2000); Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995). AFFIRMED, in part, REVERSED, in part, and REMANDED, in part. ALLEN, DAVIS, and BENTON, JJ., CONCUR.…
Authorities Cited
- Finkelstein v. State, 574 So. 2d 1164 (Fla. 4th DCA 1991)