MICHAEL JAMES SCHLUP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Schlup challenges the revocation of his probation for burglary, arguing the revocation order was based on an invalid probation condition. The court held that while probation cannot be revoked solely for violating an unimposed special condition, the record supported revocation based on Schlup's violation of the condition to 'live without violating the law,' and remanded for an amended order clarifying the proper grounds.
Probation cannot be revoked solely for violating a special condition that was not imposed by the court. However, the trial record supported a finding that Schlup violated the condition to 'live without violating the law,' which would independently support revocation. The written revocation order's finding that all three conditions were violated is inconsistent with the trial judge's explicit finding that the monetary obligation condition was not violated.
[1] Probation cannot be revoked for violating a special condition that was not imposed by the court.
[2] A probation revocation order that is inconsistent with the trial judge's explicit findings may be reversed and remanded for amendment.
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Join FLexlaw to unlock all legal intelligence“probation cannot be revoked for violating a special condition that was not imposed by the court”
Establishes the core legal principle that probation revocation requires violation of court-imposed conditions, not merely probation officer instructions
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Join FLexlaw to unlock all legal intelligenceSchlup pled nolo contendere to burglary of an occupied dwelling with intent to commit battery. While on probation, he was arrested for misdemeanor bat…
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BARFIELD, C.J.
The appellant, who pled nolo con-tendere to the charge of burglary of an occupied dwelling with the intent to commit a battery therein, seeks reversal of an order revoking his probation, asserting that it was based solely on his failure to comply with instructions of his probation officer that he not have contact with the victim. He correctly contends that probation cannot be revoked for violating a special condition that was not imposed by the court.1 However, the affidavit of violation of probation also alleged violation of the condition that he “live without violating the law.” At the hearing, he essentially admitted that he had violated this condition,2 which would independently support revocation of probation. The transcript of the hearing indicates that the trial judge found that he had violated the condition that he comply with the instructions of his probation officer by having contact with the victim, and that he had not violated a third condition regarding failure to meet his monetary obligations, but she did not clearly address the allegation that he had violated the condition that he “live without violating the law.”
Because the written revocation order, which stated that the appellant had violated all three of the conditions alleged in the affidavit, is not consistent with the trial judge’s explicit finding that he did not violate the condition that he meet his monetary obligations, the order is REVERSED and the case is REMANDED to the trial court for entry of an amended order. We point out that the record would support a finding that the appellant violated the condition that he “live without violating the law,” and that the amended order may properly base revocation of his probation upon such a finding.
ERVIN and WOLF, JJ., CONCUR. . See Eddie v. State, 740 So. 2d 583 (Fla. 1st DCA 1999); Talley v. State, 708 So. 2d 333 (Fla. 4th DCA 1998); Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996); Kiess v. State, 642 So. 2d 1141 (Fla. 4th DCA 1994); Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983); Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983).
. While on probation, appellant had been arrested for misdemeanor battery, based upon his allegedly having struck the victim’s new boyfriend on the head with a stick or bat. He admitted the allegation, but asserted that the other man had instigated the fight.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Facen v. State (Fla. 3d DCA 2023)…retion in probation revocation proceedings. Russell v. State, 982 So. 2d 642, 646 (Fla. 2008). Nonetheless, it is axiomatic that “probation cannot be revoked for violating a special condition that was not imposed by the court.” Schlup v. State, 772 So. 2d 628, 629 (Fla. 1st DCA 2000); see Ramirez v. State, 4 So. 3d 752, 753 (Fla. 2d DCA 2009) (“[B]ecause the requirement of providing his own interpreter was not a court-imposed condition of probation, [Defendant] should not have been found in violation…
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Herrera v. State (Fla. 2d DCA 2019)
Authorities Cited
- Kiess v. State, 642 So. 2d 1141 (Fla. 4th DCA 1994)
- Denver Jesse Hutchinson v. State, 428 So. 2d 739 (Fla. 2d DCA 1983)
- Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996)
- Haynes v. State, 440 So. 2d 661 (Fla. 1st DCA 1983)
- Eddie v. State, 740 So. 2d 583 (Fla. 1st DCA 1999)
- Talley v. State, 708 So. 2d 333 (Fla. 4th DCA 1998)