N.L., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The First District Court of Appeal reversed a probation revocation where the trial court found the appellant guilty of violating probation on grounds that were neither alleged in the charging document nor proved at the revocation hearing. The court held that due process requires probationers be given notice of the specific violation alleged, and revocation on unalleged grounds constitutes fundamental error.
No. It is fundamental error and a deprivation of due process for a trial court to revoke probation on grounds never alleged in writing, even if an alleged violation was conceded or proved. Probationers are entitled to notice of the specific law they are alleged to have violated.
[1] A probationer is entitled to notice of the specific law they are alleged to have violated.
[2] Revocation of probation on grounds not alleged in writing violates due process.
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Join FLexlaw to unlock all legal intelligence“Probationers are entitled to notice 'of what law the probationer is alleged to have violated.'”
Establishes the fundamental due process right of probationers to notice of the specific alleged violation.
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Join FLexlaw to unlock all legal intelligenceAppellant N.L. was on probation and faced a revocation proceeding. The trial court found her guilty of violating her probation, but the violation the …
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PER CURIAM.
The trial court found appellant guilty of violating her probation on grounds neither alleged nor proved. “[P]robationers are entitled to notice ‘of what law the probationer is alleged to have violated.’ ” Andrews v. State, 693 So. 2d 1138, 1141 (Fla. 1st DCA 1997) (quoting Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995)).
It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether. See Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999) (“Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997) (“The revocation of a defendant’s probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law.”); Andrews, 693 So. 2d at 1141 (“[I]t is improper to find a probationer has violated a condition of his probation that he has not been charged with violating.”).
This is not a case where evidence at a revocation hearing proved a lesser included offense. Cf. Thomas v. State, 634 So. 2d 276, 277 (Fla. 4th DCA 1994) (affirming appellant’s revocation of probation where the affidavit of violation alleged that he resisted arrest with violence, but he was actually convicted of resisting arrest without violence); Evans v. State, 409 So. 2d 1078, 1079 (Fla. 4th DCA 1981) (affirming an appellant’s revocation of probation where the affidavit charged him with two counts of burglary, but he was actually found guilty by a jury of grand larceny and aiding and abetting); see also Hines v. State, 358 So. 2d 183, 185-86 (Fla.1978) (finding variance harmless where affidavit alleged arrest and proof established underlying crime).
Here no willful violation was conceded.
The trial court did not find that the violations that were alleged were proven, and ordered revocation on a ground never alleged.
Reversed.
BENTON and LEWIS, JJ., concur; MINER, J., specially concurs with opinion.
MINER, J.,
specially concurring.
I agree that we are obliged to reverse and remand because the basis for revocation of N.L.’s probation was for not observing curfew, a violation not charged in the affidavit before the court. However, since the court did not rule on the absconding allegation in the affidavit, i.e. that N.L. went “out of supervision of her parents or the department” and her “whereabouts are unknown,” on remand the court is free to do so and, if it be so minded, may base a probation violation on such conduct, thereby achieving the same end result.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…f a new law violation that was not contained in the affidavit of violation. “It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether.” N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 2002); see Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993) (holding revocation of probation may not be based upon violation not charged in affidavit); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997) (holding revoc…
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Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)…. 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 2002) (reversing the trial court’s finding that the appellant violated probation as it did not find that the violations that were alleged were proven, and as it ordered revocation on a ground never alleged); Grimsley v. State, 830…
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McRAE v. State, 88 So. 3d 384 (Fla. 2d DCA 2012)…t 750. “ ‘It is error for a trial court to revoke probation even for a conceded violation when the probationer has been charged with a different violation altogether.’ ” Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003) (quoting N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 2002)). Here, McRae admitted to the curfew and consumption of alcohol allegations; however, those allegations were not charged in the violation of probation affidavit. This is reversible, fundamental error. See Johnson, 811 So. 2…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Sellie Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997)
- Myles Franklin Andrews v. State, 693 So. 2d 1138 (Fla. 1st DCA 1997)
- Smith v. State, 738 So. 2d 433 (Fla. 1st DCA 1999)
- Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995)
- Evans v. State, 409 So. 2d 1078 (Fla. 4th DCA 1981)
- Stephon Leroy Thomas v. State, 634 So. 2d 276 (Fla. 4th DCA 1994)