DARRELL W. MATTHEWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darrell Matthews appealed the trial court's order revoking his probation on two grounds: failure to obtain a Nelson hearing regarding his dissatisfaction with counsel, and revocation based on failure to complete community service hours. The appellate court rejected the first argument but agreed the second basis for revocation was deficient, yet affirmed the revocation because the trial court properly found new law violations (cocaine possession and delivery).
The court rejected the Nelson hearing argument because Matthews only expressed generalized unhappiness without requesting discharge for specific acts of incompetence. The court agreed the probation revocation was erroneous as to the community service violation because the original order lacked defined performance parameters and timelines, but affirmed the overall revocation based on substantial evidence of new law violations for cocaine possession and delivery.
[1] A trial court does not abuse its discretion by failing to order a Nelson hearing when a defendant expresses only generalized unhappiness with appointed counsel and does n…
[2] A probation violation based on failure to perform community service hours is not willful and substantial if the original probation order fails to specify commencement and…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a trial court does not abuse its discretion when it fails to order a Nelson hearing”
Establishes the standard for when a Nelson hearing is required—only when a defendant requests discharge for specific incompetence, not for generalized dissatisfaction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMatthews was on probation and expressed dissatisfaction with his appointed counsel. His probation order included a condition to perform community serv…
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CASANUEVA, Judge.
Darrell W. Matthews appeals from the trial court’s order revoking his probation. His first contention is that the court should have ordered a Nelson hearing1 when he expressed dissatisfaction with his counsel. We reject this argument because it is clear that Mr. Matthews articulated only generalized unhappiness with his attorney and never requested that his appointed counsel be discharged for specific acts of incompetence. In such a case, a trial court does not abuse its discretion when it fails to order a Nelson hearing. Augsberger v. State, 655 So. 2d 1202, 1204-05 (Fla. 2d DCA 1995).
Mr. Matthews’ second argument is that the court erred when it revoked his probation on the ground that he failed to perform community service hours as ordered. We agree. The deficiency in the order revoking Mr. Matthews’ probation on the basis of his failure to perform community service hours derives from his original probation order’s omission of defined times for his commencement and completion of the condition. This court has consistently held that such a violation will not be deemed willful and substantial if the performance parameters have not been spelled out and sufficient time remains in the probationary period for the probationer to complete the requirement. See Bowser v. State, 937 So. 2d 1270, 1272 (Fla. 2d DCA 2006); Bryant v. State, 931 So. 2d 251, 253 (Fla. 2d DCA 2006); Shipman v. State, 903 So. 2d 386, 387 (Fla. 2d DCA 2005).
Although we agree that the court erred in that regard, we also hold that the State presented competent, substantial evidence demonstrating by the greater weight of the evidence that Mr. Matthews committed the new law violations of possession and delivery of cocaine. That fact in itself was a sufficient basis on which to revoke his probation. See Hawkins v. State, 884 So. 2d 496, 496-97 (Fla. 2d DCA 2004) (“Because the remaining violations of probation, which include new law violations, are substantial, we affirm the revocation of probation.”).
Accordingly, we affirm the order revoking the defendant’s probation but remand for the trial court to strike any reference to a violation of condition 27.
ALTENBERND and VILLANTI, JJ., Concur. . Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) (establishing a procedure that a trial court must follow when a defendant indicates a desire to represent himself).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Green v. State, 19 So. 3d 449 (Fla. 2d DCA 2009)…2009) (directing trial court to strike violation of condition 2 of probation but affirming revocation and sentence on remaining grounds “because the trial court would have revoked probation based on the new law violation alone”); Matthews v. State, 943 So. 2d 984, 986 (Fla. 2d DCA 2006) (ordering trial court to strike reference to violation of one condition of probation but affirming revocation because defendant’s new law violation “itself was a sufficient basis on which to revoke his probation”); Sprague v.…
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D.F. v. State, 87 So. 3d 49 (Fla. 2d DCA 2012)…the order requiring the defendant to perform 150 community service hours at the rate of five hours per month failed to specify a starting or end [*51] ing date and there was no evidence of his refusal to perform. Id. at 1043; see Matthews v. State, 943 So. 2d 984, 985 (Fla. 2d DCA 2006) (“This court has consistently-held that such a violation will not be deemed willful and substantial if the performance parameters have not been spelled out and sufficient time remains in the probationary period for the probat…
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Herrera v. State (Fla. 2d DCA 2019)
Authorities Cited
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Augsberger v. State, 655 So. 2d 1202 (Fla. 2d DCA 1995)
- Dajuan Donya Bowser v. State, 937 So. 2d 1270 (Fla. 2d DCA 2006)
- Shipman v. State, 903 So. 2d 386 (Fla. 2d DCA 2005)
- Brown v. Nelda Jane Brown, 931 So. 2d 251 (Fla. 1st DCA 2006)
- Bryant v. State, 931 So. 2d 251 (Fla. 2d DCA 2006)
- Dahlgren Hawkins v. State, 884 So. 2d 496 (Fla. 2d DCA 2004)