MICHAEL MOMENT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that appellate counsel was ineffective for failing to supplement the record with the probation order, which lacked the condition for random drug testing.
The defendant was convicted of violating probation for failing a drug test. On direct appeal, he argued the probation order lacked a drug testing cond…
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PER CURIAM.
This petition for writ of habeas corpus alleging ineffective assistance of appellate counsel arises from this court’s affirmance of Moment’s violation of probation. Moment v. State, 773 So. 2d 577 (Fla. 4th DCA 2000). Moment argues that appellate counsel was ineffective in failing to supplement the record on appeal with a copy of the probation order. We grant Moment’s petition and reverse his conviction for violation of probation.
On direct appeal Moment sought reversal of his conviction by arguing that there was no condition in the order requiring him to submit to random drug testing. This court affirmed, noting that the record on appeal did not contain a copy of the probation order and while on notice of such defect Moment’s counsel did not move to supplement the record. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979); Cirillo v. Davis, 732 So. 2d 387, 389 (Fla. 4th DCA), rev. denied, 751 So. 2d 50 (1999).
In response to this petition the state provided a copy of the probation order. It does not include a condition requiring random urinalysis. We reject the state’s argument that the probation officer’s testimony supports the charged violation. Moment would have prevailed on appeal. Rutherford v. Moore, 774 So. 2d 637 (Fla.2000); Alvarez v. State, 635 So. 2d 1053 (Fla. 4th DCA 1994).
The petition is granted and the conviction for violation of probation is reversed.
FARMER, KLEIN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wilson v. State, 835 So. 2d 1215 (Fla. 4th DCA 2003)…grant relief. The conviction and sentence are reversed as to the charge of possession of cannabis with intent to deliver and, as to that charge, we remand for a new trial. See Kleckley v. State, 810 So. 2d 1081 (Fla. 4th DCA 2002); Moment v. State, 785 So. 2d 717 (Fla. 4th DCA 2001). STEVENSON and SHAHOOD, JJ., concur.…
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000)
- Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999)
- Moment v. State, 773 So. 2d 577 (Fla. 4th DCA 2000)
- McKNIGHT v. State, 773 So. 2d 577 (Fla. 3d DCA 2000)
- Kenneth v. Hemmerle, 635 So. 2d 1053 (Fla. 4th DCA 1994)
- Alvarez v. State, 635 So. 2d 1053 (Fla. 4th DCA 1994)