ANTHONY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Davis appealed the revocation of his probation for felony battery. The Fourth District Court of Appeal reversed the revocation because the trial court relied on charges contained in an amended affidavit that was never formally filed or provided to Davis, violating his due process rights.
A revocation of probation cannot be based on violations alleged in an amended affidavit that was not filed or provided to the defendant, as this violates fundamental due process rights. The court reversed and remanded for the trial court to determine whether probation revocation was warranted based solely on the two substantive violations in the original affidavit.
[1] A probation revocation may only be based on violations that were alleged and presented to the court.
[2] A probation revocation based on a violation not alleged in the charging document constitutes a deprivation of due process, and a contemporaneous objection is not required…
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Join FLexlaw to unlock all legal intelligence“As a fundamental principle of due process, a revocation may be based only on a violation alleged and presented.”
Establishes the core legal principle that probation revocations must be based on violations that are properly alleged and presented to the defendant
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Join FLexlaw to unlock all legal intelligenceDavis was charged in a probation violation affidavit with two substantive violations: trespass after warning and resisting arrest without violence. At…
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STONE, J.
We reverse an order revoking Davis’ probation for felony battery and' remand for further proceedings. The trial court erred by finding Davis guilty of violating his probation where three of five charges are founded On an amended affidavit that was not filed.
The filed probation violation affidavit and warrant charge two substantive violations, trespass after warning and resisting arrest without violence. At the beginning of the VOP. hearing, the probation officer advised the court that there was an “amended, updated” warrant which included allegations that Davis violated probation conditions by failing to complete a G.E.D., failing to complete an anger management program, and failing to, complete a psychological evaluation. However, the amended charging document was never presented or filed, other than by reference during oral argument.
The trial court found .that Davis had violated his probation on the substantive charges and also found, that he had been given “ample opportunity to comply” with both the anger management course rer quirement and the psychological evaluation requirement. •
As a fundamental principle of due process, a revocation may be based only on a violation alleged and presented. See State v. Anderson, 537 So. 2d. 1373 (Fla.1989); Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973). Although this issue was not raised in the trial court, a revoca tion of probation “based on a violation not alleged in the charging document is a deprivation of the right to due process of law.... A contemporaneous objection [is] not required [to preserve the issue for appellate review] because a deprivation of the right to due process is a fundamental error.” Nagel v. State, 758 So. 2d 1206, 1208 (Fla. 4th DCA 2000). See also Palmer v. State, 603 So. 2d 535, 536 (Fla. 4th DCA 1992).
Here, although the transcript indicates that the court was advised of the amended charges, as there is a reference to counts VI and VII, there is no indication that an amended document of any kind was furnished to either Davis or the court. Further, there is no way this court can review a document which is not part of the trial court record. In Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003), we recognized that 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 (citing to N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 2002)).
We recognize that a defendant is not permitted to rely upon a technical defect which has “occasioned him no prejudice.” Ray, 855 So. 2d at 1262. See also Gerlaugh v. Fla. Parole Comm’n, 139 So. 2d 888 (Fla.1962); Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993) (failure of an assistant state attorney to sign); Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983) (unsigned information). See also 3.140(g), Fla. R.Crim. P. The circumstances here, however, go beyond such “technical” defects.
We remand for modification and for the trial court to determine whether it would have violated Davis’ probation for the two substantive violations alone. As to all other issues raised, we find no reversible error or abuse of discretion.
FARMER, C.J. and TAYLOR, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005)…of the probationer’s minimal due process rights. See Langbaum v. State, 799 So. 2d 391 (Fla. 4th DCA 2001). Fundamental error, however, has been held to exist where a violation of probation affidavit is not served upon the defendant, Davis v. State, 891 So. 2d 1186 (Fla. 4th DCA 2005), or where the affidavit fails to adequately provide notice of the charge forming the basis for revocation. Ray v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003).2 The error here is not in the substance of the charging document which…
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Thompson v. State, 974 So. 2d 594 (Fla. 2d DCA 2008)…as the circuit court noted, the Staté omitted to charge Mr. Thompson with failure to report. A revocation of probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Davis v. State, 891 So. 2d 1186, 1187 (Fla. 4th DCA 2005); Perkins v. State, 842 So. 2d 275, 277 (Fla. 1st DCA 2003). As the circuit court recognized, it could not revoke Mr. Thompson’s probation based on a failure to report because this conduct was not charged in the amended affi…
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Ratliff v. State, 970 So. 2d 939 (Fla. 4th DCA 2008)…it charged appellant with violating condition (5) by “failing to live and remain at liberty without violating any law.” “As a fundamental principle of due process, a revocation may be based only on a violation alleged and presented.” Davis v. State, 891 So. 2d 1186, 1187 (Fla. 4th DCA 2005). Accordingly, we reverse the judgment on appeal and remand with directions that appellant’s probation be reinstated. Reversed and Remanded. STONE and HAZOURI, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Anderson, 537 So. 2d 1373 (Fla. 1989)
- RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)
- Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973)
- N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002)
- Gerlaugh v. Fla. Parole Comm'n, 139 So. 2d 888 (Fla. 1962)
- Dobson v. State, 434 So. 2d 332 (Fla. 3d DCA 1983)
- Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992)
- Montanez v. State, 630 So. 2d 1163 (Fla. 3d DCA 1993)
- Connor v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)
- Nagel v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)