DONALD SHERWOOD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Sherwood appealed the revocation of his probation. The court affirmed the revocation based on substantial evidence of four valid violations, but reversed in part because the trial court improperly found violations for which no evidence was presented and failed to account for overlapping curfew violations.
The revocation of probation was affirmed as to four violations supported by competent, substantial evidence, but reversed in part because: (1) a probation revocation cannot be sustained based on unsupported allegations; (2) one curfew violation was merely a continuation of a previous violation and not separate and substantial; and (3) the trial court improperly found violations for which no evidence was presented.
[1] A revocation of probation cannot be sustained based on alleged violations for which the State presented no evidence.
[2] A trial court may revoke a defendant's probation only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violati…
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Join FLexlaw to unlock all legal intelligence“We cannot sustain a revocation of probation based on unsupported allegations.”
Establishes the core principle that probation revocation requires evidence supporting the violations found by the trial court.
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Join FLexlaw to unlock all legal intelligenceSherwood's probation was revoked based on alleged violations including: failing to report a law enforcement contact on January 9, 2005; traffic infrac…
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LaROSE, Judge.
Donald Sherwood challenges the revocation of his probation and the resulting sentence. We affirm in part and reverse in part.
In an amended affidavit of violation of probation, the State alleged that Mr. Sherwood committed seven violations of the conditions of his probation. At the revocation hearing, however, the State presented evidence for only five of the alleged violations: failing to report a January 9, 2005, contact with law enforcement (condition one); failing to live and remain at liberty without violating any law by virtue of traffic infractions that occurred on January 9, 2005 (condition five); and failing, on three instances, to comply with curfew (condition sixty-one). The State presented no evidence on two other violations of condition five that allegedly occurred on February 9, 2005 (driving without a license and failing to register a motor vehicle).
The trial court found Mr. Sherwood in willful and substantial violation of his probation. By listing all seven alleged violations in its written order of revocation, the trial court concluded that Mr. Sherwood had committed violations for which the State presented no evidence. We cannot sustain a revocation of probation based on unsupported allegations. See Davis v. State, 478 So. 2d 112 (Fla. 2d DCA 1985).
We also conclude that one of the curfew violations is not substantial. See Anthony v. State, 854 So. 2d 744, 747 (Fla. 2d DCA 2003) (holding that trial court may revoke a defendant’s probation only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation). Mr. Sherwood was not at his approved residence at 10:20 p.m., and at 10:40 p.m., on February 10, 2005. He was also absent at 5:40 a.m. on February 11, 2005. We cannot conclude that Mr. Sherwood’s absence at 10:40 p.m. was anything other than a continuation of his willful absence at 10:20 p.m. on February 10, 2005.
The trial court’s findings of violation on the remaining four incidents recited in the amended affidavit were sup ported by competent, substantial evidence, and are sufficient to support the revocation of Mr. Sherwood’s probation. See Mitchell v. State, 871 So. 2d 1040, 1042 (Fla. 2d DCA 2004); Coxon v. State, 365 So. 2d 1067, 1068 (Fla. 2d DCA 1979). Accordingly, we affirm the trial court’s revocation of probation and sentence imposed. We reverse and remand, however, solely for entry of a corrected order of revocation that will, consistent with this opinion, delete one violation of condition sixty-one and two violations of condition five. Mr. Sherwood need not be present when the trial court enters the corrected order. Affirmed in part, reversed in part, and remanded with instructions. •
SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McKENZIE v. State, 201 So. 3d 29 (Fla. 3d DCA 2013)…by sufficient evidence). We reverse and remand, however, solely for entry of a corrected order of revocation that will, consistent with this opinion, delete the violation that states that McKenzie committed criminal mischief. See Sherwood v. State, 933 So. 2d 43, 45 (Fla. 2d DCA 2006). McKenzie need not be present when the trial court enters the corrected order. We affirm with respect to all other issues raised on appeal, without discussion. Reversed, in part, affirmed, in part, and remanded.…
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McAROY v. State, 975 So. 2d 587 (Fla. 1st DCA 2008)…third alleged violation of Condition (5), committing the offense of neglect of a child without great bodily harm. Accordingly, we REMAND with directions to strike that portion of the order finding this third violation. See, e.g., Sherwood v. State, 933 So. 2d 43, 44-45 (Fla. 2d DCA 2006); Davis v. State, 478 So. 2d 112, 113 (Fla. 2d DCA 1985). ALLEN, KAHN, and DAVIS, JJ., concur.…
Authorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Mitchell v. State, 871 So. 2d 1040 (Fla. 2d DCA 2004)
- Charvester Anthony v. State, 854 So. 2d 744 (Fla. 2d DCA 2003)
- Davis v. State, 478 So. 2d 112 (Fla. 2d DCA 1985)