JAMES R. PARMINTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Parminter appealed his cocaine possession conviction and the revocation of his probation. The court affirmed his conviction but reversed the probation revocation and sentencing, finding that the trial court improperly revoked probation on conduct not charged in the affidavit of violation and treated the criminal trial as a probation revocation hearing without proper stipulation or waiver.
The conviction for cocaine possession was affirmed. However, the probation revocation was reversed because the trial court: (1) revoked probation on the basis of the cocaine possession charge which was not alleged in the affidavit of violation, violating the rule that probation cannot be revoked on conduct not charged in the affidavit; and (2) improperly treated the criminal trial as a probation revocation hearing without a stipulation or waiver. The sentencing was remanded for recalculation of the offense severity level and the public defender lien was stricken.
[1] A trial court may not revoke probation based on conduct not alleged in the affidavit of violation.
[2] A criminal trial on a new charge cannot serve as a revocation hearing for probation without a stipulation or waiver.
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Join FLexlaw to unlock all legal intelligence“a trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation”
Establishes the primary error: the trial court cannot revoke probation based on the cocaine possession charge when the affidavit only alleged battery/pushing of girlfriend
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Join FLexlaw to unlock all legal intelligenceParminter was convicted of cocaine possession on September 19, 1997, while on probation for an earlier offense. An affidavit of probation violation wa…
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CASANUEVA Judge.
In this appeal James R. Parminter asserts that the trial court committed three errors. His first contention-that the trial court erred in denying his motion for judgment of acquittal on the charge of possession of cocaine-is without merit, and we affirm his conviction. His second and third contentions are that the trial court erred in revoking his probation and in sentencing him on the cocaine charge. We reverse on those grounds.
When Mr. Parminter was convicted for possessing cocaine on September 19, 1997, he was on probation for an earlier offense. After his conviction, an affidavit of probation violation was filed against him. The affidavit did not mention the cocaine charge; instead, it asserted that Mr. Par-minter violated his probation by physically pushing or battering his then girlfriend, Leanne O’Neal. No formal revocation hearing was held on this charge. At the sentencing hearing on the possession case, however, the trial court not only imposed sentence for that offense but also determined that Mr. Parminter had violated his probation, revoked it, and imposed sentence.
In revoking Mr. Parminter’s probation, the trial court committed two errors. First, a trial court is not permitted to revoke probation on-conduct not charged in the affidavit of violation. See Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). Here, because the affidavit failed to allege a violation of probation by the possession of cocaine, the trial court could not violate Mr. Parminter’s probation on that basis.
Second, the general rule is that a trial on a new charge-here, the cocaine case-eannot be treated as a revocation hearing. See State v. Spratling, 336 So. 2d 361 (Fla.1976); Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977). This record contains neither a stipulation that the criminal trial would substitute for the revocation hearing nor a waiver of the right to a revocation hearing. Accordingly, we reverse the order revoking probation without prejudice to the State’s ability to refile an appropriate affidavit alleging violations emanating from the cocaine case.
At sentencing, defense counsel argued that the scoresheet reflected an erroneously high point total because of improper scoring of one of Mr. Parminter’s prior offenses. The court must determine on remand whether Mr. Parminter was previously convicted of purchase of cocaine within 1,000 feet of a school or of an attempted purchase within 1,000 feet of a school and must further decide the appropriate offense severity level. On appeal the State has suggested that the attempt to purchase cocaine within 1,000 feet of a school is a level 4 offense.
Finally, we note that the trial court improperly imposed a public defender lien even though the defendant was represented by privately retained counsel. Therefore, this cost must be stricken.
Affirmed in part; reversed in part; and remanded with instructions.
PARKER, A.C.J., and GREEN, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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LEE v. State, 67 So. 3d 1199 (Fla. 2d DCA 2011)…ng his probation by committing this offense, and “ ‘[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.’ ” Cherington v. State, 24 So. 3d 658, 660 (Fla. 2d DCA 2009) (quoting Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000)). However, despite these errors, we affirm the revocation of Lee’s probation. When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revok…
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Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)…jection was not required as a deprivation of the right to due process of law constitutes fundamental error. See id. (citations omitted). A trial court is not permitted to revoke probation on conduct not charged in the affidavit. Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000) (holding that the trial court erred in finding that the appellant violated his probation for possessing cocaine as the affidavit failed to allege such a violation); see also N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 20…
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Johnson v. State, 811 So. 2d 749 (Fla. 2d DCA 2002)…amended affidavit of community control dated June 16, 2000. The State concedes, and the record shows this to be the case. A trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation. Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000); Brown v. State, 468 So. 2d 439 (Fla. 2d DCA 1985). Therefore, because the allegation that Johnson was not home on April 11, 2000, was not charged, it is not a permissible ground for the revocation.2 The State argues that the rev…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Spratling, 336 So. 2d 361 (Fla. 1976)
- Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986)
- Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977)