LARRY B. BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that probation revocation based on cocaine possession must be reversed due to lack of evidence, but affirmed based on felony battery and witness tampering.
Larry Butler's probation was revoked based on three new offenses: possession of cocaine, felony battery, and tampering with a witness. The State prese…
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VILLANTI, Judge.
Larry Butler appeals the trial court’s revocation of his probation based on three new offenses — possession of cocaine, felony battery, and tampering with a witness. We affirm the revocation of probation based on felony battery and tampering with a witness; however, we reverse the revocation order as to the finding of a violation based on possession of cocaine because the State presented no evidence to support it.
At the evidentiary hearing in the trial court, a police officer testified that he arrested Butler after responding to a domestic battery call. After the arrest, a back-up officer searched Butler and located a glass crack pipe in the pocket of the pants Butler was wearing but denied owning. The officer who testified at the hearing could not recall what the laboratory test results on the crack pipe were. No evidence was introduced to show the presence of drug residue on the pipe, nor were any drugs found on Butler at the time of his arrest. We are therefore compelled to reverse and remand for the trial court to strike its finding of a new offense based on cocaine possession.
However, we find no error in the trial court’s finding that Butler violated his probation based on the new offenses of battery and tampering with a witness. Because these remaining violations of probation are substantial, we affirm the revocation of probation based on the remaining violations. See Mitchell v. State, 871 So. 2d 1040, 1042 (Fla. 2d DCA 2004) (recognizing that when an appellate court reverses a violation of community control, it need not remand for reconsideration of the revocation when the remaining violations are substantial).
Affirmed in part, reversed in part, and remanded.
FULMER, C.J., and ALTENBERND, J., Concur.
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E.J. v. State, 29 So. 3d 348 (Fla. 3d DCA 2010)…rial court is not required. See Matos v. State, 956 So. 2d 1240, 1240 (Fla. 4th DCA 2007) (affirming revocation of community control after striking some of the violations but finding other violations were supported by the evidence); Butler v. State, 932 So. 2d 306, 307 (Fla. 2d DCA 2006) (recognizing that when an appellate court reverses on a finding regarding one of the conditions of community control, remand is not required if the remaining violation or violations are substantial); Rawlins v. State, 711 So.…
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Crawford v. State, 982 So. 2d 1 (Fla. 2d DCA 2008)…hat Crawford violated conditions 5 and 13 of his community control and that these violations were both willful and substantial. Accordingly, we affirm the revocation of Crawford’s community control based on these two violations. See Butler v. State, 932 So. 2d 306, 307 (Fla. 2d DCA 2006) (affirming the revocation of Butler’s probation despite finding one ground for revocation unsupported by the evidence because the remaining violations were substantial); Mitchell v. State, 871 So. 2d 1040, 1042 (Fla. 2d DCA 2…
Authorities Cited
- Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004)