CARL CEDRIC NELSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nelson appealed from the revocation of his probation and his trafficking conviction. The court reversed the probation revocation because it was based on a charge that lacked evidentiary support and violated the rule that probation can only be revoked for violations actually charged. The court affirmed the trafficking conviction but remanded for resentencing due to improper inclusion of probation revocation points in the sentencing scoresheet.
The probation revocation must be reversed because there was no evidence presented supporting the alleged violation of carrying a concealed weapon, and a defendant cannot be found to have violated probation for a violation that was not charged. Additionally, a crime occurring before probation commenced cannot serve as a basis for revocation. The conviction for trafficking is affirmed, but resentencing is required because the sentencing scoresheet improperly included points for the reversed probation violation.
[1] A trial court cannot revoke probation for a violation that was not charged.
[2] A conviction for an offense that occurred before the imposition of probation cannot serve as the basis for revoking that probation.
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Join FLexlaw to unlock all legal intelligence“a defendant cannot be found to have violated his probation for a violation that was not charged”
Establishes the fundamental rule that probation revocation must be based on violations actually charged to the defendant
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Join FLexlaw to unlock all legal intelligenceNelson was placed on probation in June 1999 for possession of cocaine, possession of cannabis with intent to sell or deliver, and obstructing an offic…
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SILBERMAN, Judge.
Carl Cedric Nelson, Jr., appeals from the revocation of his probation in circuit case number 98-18446 and from his judgment and sentence in circuit case number 99-13146. Because the trial court revoked Nelson’s probation for a violation that was not charged, we reverse the order revoking Nelson’s probation. We affirm Nelson’s conviction in case number 99-13146 without comment but remand for resentencing.
In case number 98-18446, Nelson was charged with possession of cocaine, possession of cannabis with intent to sell or deliver, and obstructing or opposing an officer without violence. In June 1999, he entered into a plea agreement that resulted in his receiving eighteen months’ probation for the charges.
Two of the conditions of Nelson’s probation are relevant to this appeal. Condition four stated that Nelson will not possess, carry, or own any firearm, and condition five stated that Nelson will not violate the law. In October 1999, Nelson was charged with violating condition five by carrying a concealed weapon. Nelson denied the charge.
In case number 99-13146, Nelson was charged with various crimes. The charges were dropped except for a charge of trafficking in cocaine. That offense occurred in April 1999, two months before Nelson was placed on probation in case number 98-18446.
Nelson was ultimately convicted on the trafficking charge. During the sentencing hearing for that conviction, the trial court also revoked Nelson’s probation. The written order of revocation stated that Nelson violated condition five of his probation, as alleged in the charging affidavit. The trial court sentenced Nelson for both the violation of probation and the conviction in the trafficking case. The sentencing scoresheet for the trafficking convic tion included points for the violation of probation.
Nelson argues that the revocation of his probation must be reversed because of the following: the alleged violation was that he was carrying a concealed weapon; there was no evidence presented to the trial court in support of the alleged violation; and the conviction for trafficking in cocaine could not serve as the basis for the revocation of probation because the offense occurred before Nelson was placed on probation. We agree that the probation revocation must be reversed.
Although the trial court based the revocation of probation on an alleged violation of condition five, Nelson denied the charge and the record contains no evidence that he carried a concealed weapon in violation of either condition four or five. Absent such evidence, the trial court could not properly revoke probation on the ground charged. Robinson v. State, 366 So. 2d 1239, 1240 (Fla. 2d DCA 1979).
Additionally, the trafficking conviction could not serve as the basis for the revocation for two reasons. First, a defendant cannot be found to have violated his probation for a violation that was not charged. Parminter v. State, 762 So. 2d 966, 967 (Fla. 2d DCA 2000); Mack v. State, 342 So. 2d 562, 562 (Fla. 2d DCA 1977). Second, because the trafficking crime occurred before Nelson was placed on probation, it could not serve as the basis for the revocation. See Swift v. State, 362 So. 2d 723, 724 (Fla. 2d DCA 1978).
It is the State’s burden to establish by the greater weight of the evidence that a willful and substantial violation of probation occurred. Rowan v. State, 696 So. 2d 842, 843 (Fla. 2d DCA 1997). Arrest alone is not a sufficient basis for finding a violation of probation. Ontiveros v. State, 746 So. 2d 1174, 1174 (Fla. 2d DCA 1999); Gomez v. State, 724 So. 2d 1205, 1206 (Fla. 2d DCA 1998). Accordingly, the revocation of Nelson’s probation is reversed.
Because Nelson’s probation was improperly revoked and the sentencing score-sheet used to determine his sentence for the trafficking conviction included points for the revocation, Nelson must be resen-tenced. It also appears that at resentencing, the prior offenses for which Nelson was on probation should be scored as prior record and not as additional offenses. See Fla. R.Crim. P. 3.702(d)(4), (8).
We have considered the other issues raised by Nelson and find them to be without merit. Accordingly, we reverse the revocation of probation in case number 98-18446, and we affirm the conviction but remand for resentencing in case number 99-13146.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, A.C.J., and DAVIS J„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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C.D. v. State, 850 So. 2d 678 (Fla. 4th DCA 2003)…s and are insufficient to establish a probation violation. See Grimsley v. State, 830 So. 2d 118, 119-20 (Fla. 2d DCA 2002). Further, the state’s reliance on appellant’s arrest for another crime as evidence is also insufficient. See Nelson v. State, 802 So. 2d 470, 472 (Fla. 2d DCA 2001). Accordingly, based on the foregoing, the evidence in this case did not support the court’s finding that appellant violated his probation. We therefore reverse and remand and direct the trial court to reinstate appellant’s p…
Authorities Cited
- Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)
- Rowan v. State, 696 So. 2d 842 (Fla. 2d DCA 1997)
- Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977)
- Ontiveros v. State, 746 So. 2d 1174 (Fla. 2d DCA 1999)
- Maerkle v. State, 362 So. 2d 723 (Fla. 2d DCA 1978)
- Swift v. State, 362 So. 2d 723 (Fla. 2d DCA 1978)
- Robinson v. State, 366 So. 2d 1239 (Fla. 2d DCA 1979)
- Gomez v. State, 724 So. 2d 1205 (Fla. 2d DCA 1998)