DWIGHT DALE CARMICHAEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2003-01-17
No. 2D01-5604
SALCINES and STRINGER, JJ., Concur.
834 So. 2d 421 Florida District Court of Appeal, Second District (2003) Positive Treatment
Cited by 4 cases
Topics
Affidavit Of Violation Probation Revocation

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Opinion of the Court
DAVIS, Judge.

DAVIS, Judge.

Dwight Dale Carmichael challenges the revocation of his probation, arguing that no affidavit of violation appears in the record. We reverse.

An order revoking probation should be vacated if no formal charge of violation of probation has been filed, and this issue may be raised for the first time on appeal. Johnston v. State, 684 So. 2d 262 (Fla. 4th DCA 1996).

Here, no affidavit of probation appears in the record, and the Highlands County clerk of circuit court has filed a “certificate of non-existence,” stating that “a diligent search has been made for the Affidavit of Violation of Probation, and said document does not exist or cannot be located.”

Although Carmichael’s probation officer testified that she had “submitted” an affidavit of violation, this does not prove that the affidavit was formally filed. Accordingly, we reverse the revocation order. Reversed.

SALCINES and STRINGER, JJ., Concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Sampson v. State, 903 So. 2d 1055 (Fla. 2d DCA 2005)
    …of the circuit court has certified that no affidavit exists in the case file. Sampson contends that the failure to file the formal charge of violation is fundamental error that may be raised for the first time on appeal, citing Carmichael v. State, 834 So. 2d 421 (Fla. 2d DCA 2003), and Johnston v. State, 684 So. 2d 262 (Fla. 4th DCA 1996), in support of his argument. Although we agree that the failure to file the affidavit was error, we disagree that the error was fundamental under the facts of this case. I…
  • Staley v. State, 851 So. 2d 805 (Fla. 2d DCA 2003)
    …ve the State of its burden to prove the violation by competent evidence. Here, no affidavit specifying Staley’s alleged violation of any condition of probation was filed. See DeJesus v. State, 848 So. 2d 1276 (Fla. 2d DCA 2003); Carmichael v. State, 834 So. 2d 421 (Fla. 2d DCA 2003). The State presented no evidence and therefore failed to satisfy its burden of proof. See Cox v. State, 816 So. 2d 160, 161 (Fla. 2d DCA 2002). Further, as no evidence was presented at the hearing, the court’s belief that Staley f…

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