RICHARD BOURNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The revocation of probation is affirmed because sufficient grounds remained, but the order must be modified to strike findings based on unalleged offenses.
[1] A trial court errs in revoking probation based upon a violation that was not alleged in the charging affidavit.
[2] A revocation of probation may be affirmed if sufficient valid grounds remain, even if some grounds for revocation were improperly found.
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was revoked based on multiple alleged violations. The trial court found violations for offenses not listed in the charging affid…
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PER CURIAM.
Appellant Richard Bourne appeals from the trial court’s order revoking his probation, arguing that because the evidence was insufficient to support the findings of violations and because some of the offenses for which the trial court found appellant in violation were not alleged in the charging affidavit, the revocation of his probation should be reversed. While we agree that the trial court erred in some respects, there were sufficient remaining grounds upon which to revoke appellant’s probation. We, therefore, affirm the revocation of appellant’s probation, and remand for modification of the trial court’s order revoking appellant’s probation in light of the errors discussed below.
Offenses not Alleged in the Charging Affidavit
The affidavits charging appellant with violating his probation alleged that he was arrested for disorderly intoxication after an incident at a local Publix supermarket on April 8, 2002, received citations for failure to change his address on his drivers license, having no proof of car insurance, and possessing/displaying a FOP insignia on May 22, 2002, and received citations for careless driving and leaving the scene of an accident resulting in injury on June 18, 2002. After a hearing, the trial court found that appellant committed the offenses of careless driving and disorderly conduct on April 8, 2002, the offense of resisting arrest with and without violence on April 8, 2002, and the offenses of leaving the scene of an accident resulting in injury and leaving the scene of an accident involving property damage on May 22, 2002. Based upon these offenses, the trial court found that appellant -wilfully and substantially violated his probation. Therefore, the trial court revoked appellant’s probation.
An affidavit upon which a revocation is based must set forth the basic facts of the alleged violations. See Perkins v. State, 842 So. 2d 275, 277 (Fla. 1st DCA 2003). Thus, revoking a defendant’s probation based upon a violation that was not charged is error. See Perkins, 842 So. 2d at 277; LeMaster v. State, 765 So. 2d 259, 260 (Fla. 1st DCA 2000). In the instant case, the affidavit charging appellant with violations of his probation did not allege that appellant committed or was cited for careless driving on April 8, 2002, committed or was charged with resisting arrest with or without violence, or committed or was charged with leaving the scene of an accident involving property damage.1 Therefore, the trial court erred in finding appellant in violation of his probation for these offenses. The trial court is directed on remand to modify its order accordingly.2
Conclusion
While the trial court erred in some respects, there are sufficient valid grounds remaining upon which the trial court could have revoked appellant’s probation, namely disorderly intoxication and leaving the scene of an accident involving injury. Therefore, the revocation of appellant’s probation is affirmed, and this case is remanded to the trial court with directions to strike the findings of violation for careless driving, resisting arrest with and without violence, and leaving the scene of an accident involving property damage only. See Burse v. State, 724 So. 2d 596, 598 (Fla. 2d DCA 1998) (affirming a revocation of probation and remanding for the trial court to strike the improper findings of violation).
AFFIRMED and REMANDED with directions.
WOLF, C.J.; PADOVANO and POLSTON, JJ., concur. . The State argues that the trial court’s finding that appellant violated his probation by leaving the scene of a traffic accident involving property damage was permissible because leaving the scene of an accident involving property damage only, in violation of section 316.061, Florida Statutes (2002), is a lessor included offense of leaving the scene of an accident involving injury, in violation of section 316,027 (2002). The trial court did not, however, find that appellant committed a lesser offense. Rather, it found that appellant committed both offenses. This cannot be so. See Peterson v. State, 775 So. 2d 376, 377-78 (Fla. 4th DCA 2000) (holding that convictions for both leaving the scene of an accident involving injury and leaving the scene of an accident involving property damage only were inconsistent and, therefore, could not be sustained).
. The Appellant also argues that the trial court erred in finding that the Appellant violated his probation by committing disorderly conduct because the offense of disorderly conduct was not charged. However, it appears based on the record of the violation and sentencing hearings that the finding of disorderly "conduct,” rather than disorderly intoxication, was merely a scrivener’s error. Appellant did not seek to have this error corrected below. On remand, the trial court should correct this scrivener's error. See Jackson v. State, 2003 WL 23094600, at *1, 870 So. 2d 135, 135 (Fla. 2d DCA Dec. 31, 2003).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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LEE v. State, 67 So. 3d 1199 (Fla. 2d DCA 2011)…anded for entry of a corrected revocation order. See, e.g., Simmons v. State, 913 So. 2d 19, 24 (Fla. 2d DCA 2005); Burse v. State, 724 So. 2d 596, 598 (Fla. 2d DCA 1998); Olvey v. State, 707 So. 2d 1189, 1189-90 (Fla. 2d DCA 1998); Bourne v. State, 869 So. 2d 606, 607 (Fla. 1st DCA 2004). Only when this court cannot determine from the record whether the trial court would have revoked the defendant’s probation based solely on the proper grounds will this court reverse and remand [*1202] for reconsideration by…
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Taffe v. State, 232 So. 3d 431 (Fla. 4th DCA 2017)…ation for committing the new law violation of armed kidnapping where the State did not allege this in its charging affidavit. “An' affidavit upon which a revocation is based must set forth the basic facts of the alleged violations.” Bourne v. State, 869 So. 2d 606, 607 (Fla. 1st DCA 2004). “Thus, revoking a defendant’s probation based upon a violation that was not charged is error.” Id. In this case, the State did not allege that Appellant committed the new law violation of armed kidnapping in the VOP affidav…
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Jabare Edwards v. State, 243 So. 3d 520 (Fla. 1st DCA 2018)…Fla. 1st DCA 2002). However, in this case, the error does not require reversal because the record clearly establishes that the trial court would have revoked Appellant's probation based solely on the new law violation of arson. See Bourne v. State , 869 So. 2d 606, 607 (Fla. 1st DCA 2004) (affirming probation revocation that was based in part on uncharged grounds because "there are sufficient valid grounds remaining upon which the trial court could have revoked [the defendant's] probation"); see also Lee v. S…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peterson v. State, 775 So. 2d 376 (Fla. 4th DCA 2000)
- Gillis Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Jackson v. State, 870 So. 2d 135 (Fla. 2d DCA 2003)
- Burse v. State, 724 So. 2d 596 (Fla. 2d DCA 1998)
- LeMASTER v. State, 765 So. 2d 259 (Fla. 1st DCA 2000)