STATE OF FLORIDA, APPELLANT,
v.
MICHAEL JENKINS, APPELLEE
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A nolle prosequi of a criminal charge does not preclude a probation violation proceeding based on that charge, as the state need only prove the violation by a preponderance of the evidence.
The state filed an affidavit for violation of probation based on an assault charge. The trial court dismissed the violation because the state had noll…
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WARNER, C.J.
We reverse the trial court’s order dismissing a violation of probation affidavit against the appellee.
The trial court dismissed the probation violation on the ground that the state had nolle prossed the assault charge that was the basis for the appellee’s viola tion of probation. A nolle prosequi only means that the state is not prepared to go forward with the prosecution of the criminal charge. At most, it conveys that the state did not have sufficient evidence to meet its burden of proving guilt beyond a reasonable doubt. “Nolle prosequi, if entered before jeopardy attaches, neither operates as an acquittal nor prevents further prosecution of the offense.” Bucob v. Adkins, 424 U.S. 641, 642, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976) (citation omitted).
To meet its burden in a violation of probation proceeding, the state need only demonstrate by a preponderance of the evidence that the defendant committed the subject offense. See Miller v. State, 661 So. 2d 353, 354 (Fla. 4th DCA 1995). As that is a lesser standard than is required to prove the criminal charge, the state may still have sufficient evidence to meet its lesser burden. Moreover, the state attorney could still refile the criminal charges against appellee.
The trial court relied on Pendergrass v. State, 601 So. 2d 1250 (Fla. 2d DCA 1992), and Graddy v. State, 517 So. 2d 772 (Fla. 2d DCA 1988). However, the court in Graddy relied upon the state’s concession of error in reaching its decision on this issue. See id. at 773. We conclude that Graddy is distinguishable because of the concession of error. Pendergrass relied upon Graddy and is also distinguishable in that the dismissal was also based on the ground that the underlying charges were dismissed as a result of the suppression of evidence.
Reversed and remanded for further proceedings.
GUNTHER and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Santiago v. State, 889 So. 2d 200 (Fla. 4th DCA 2004)…ement to revoke probation, that there must be a willful and substantial violation of a condition thereof, must be shown by the State by a preponderance or the greater weight of the evidence.” 15 Fla. Jur.2d Criminal Law § 2197. See State v. Jenkins, 762 So. 2d 535, 536 (Fla. 4th DCA 2000); Hern v. State, 747 So. 2d 1039, 1040 (Fla. 4th DCA 1999). “While hearsay evidence is admissible in probation revocation proceedings, hearsay alone is insufficient to establish a violation of a condition of probation.” Kiess…
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Waymon M. Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001)…ill, 545 So. 2d 850, 851 (Fla.1989) (holding that [*461] a new criminal offense can constitute a substantive violation of probation for purposes of imposing a guidelines departure sentence even if the State files a nolle prosequi); State v. Jenkins, 762 So. 2d 535, 536 (Fla. 4th DCA 2000) (holding that a new criminal offense can constitute a probation violation even if nolle prossed by the State); but cf. Pendergrass v. State, 601 So. 2d 1250, 1250 (Fla. 2d DCA 1992) (reversing probation revocation based upon…
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Washington Louis v. State, 797 So. 2d 1281 (Fla. 4th DCA 2001)…rds of proof apply. See Gonzales v. State, 780 So. 2d 266 (Fla. 4th DCA 2001) (“The fact that appellant was acquitted of aggravated battery by a jury does not mean that his probation could not be revoked based on the same facts.”); State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000) (“To meet its burden in a violation of probation proceeding, the state need only demonstrate by a preponderance of the evidence that the defendant committed the subject offense. As that is a lesser standard than is required to pr…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bucolo v. Adkins, 424 U.S. 641 (U.S. 1976)
- Ovid Miller v. State, 661 So. 2d 353 (Fla. 4th DCA 1995)
- David v. Graddy, 517 So. 2d 772 (Fla. 2d DCA 1988)
- Pendergrass v. State, 601 So. 2d 1250 (Fla. 2d DCA 1992)