RASHEAN LYNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2009-02-13
No. 5D08-744
PALMER, C.J., SAWAYA and ORFINGER, JJ., concur.
2 So. 3d 1088 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 4 cases
Topics
New Law Violation Violation Of Probation Fundamental Error

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Rashean Lynn appeals the trial court’s order revoking his probation and sentencing him to fifteen years in prison for his earlier conviction of trafficking in cocaine. The trial court concluded that Lynn violated his probation by committing a new law violation (or several of them), and by changing his residence without first procuring the consent of his probation officer. As to the former violation, we affirm without further discussion. As to the latter, we must reverse as no violation regarding a change of residence condition was alleged. Revoking probation for conduct not charged is fundamental error. Smith v. State, 738 So.2d 433, 435 (Fla. 1st DCA1999).

We affirm the revocation of Lynn’s probation and the sentence imposed. We remand with directions to enter an order of revocation of probation deleting any reference to a condition three (change of residence) violation, as no such allegation was made against Lynn.

AFFIRMED IN PART; and REMANDED.

PALMER, C.J., SAWAYA and ORFINGER, JJ., concur.

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  • Garcia v. State, 73 So. 3d 823 (Fla. 5th DCA 2011)
    …irearm during the episode on which the State based the condition 13 violation. Although the State’s evidence supported this finding, we must reverse as to this •violation because it was not alleged [*824] in the affidavit.1 See, e.g., Lynn v. State, 2 So. 3d 1088 (Fla. 5th DCA 2009) (“Revoking probation for conduct not charged is fundamental error.”) (citation omitted). On remand, the trial court is directed to clarify in its violation order that the revocation of Garcia’s probation is based solely upon Garc…
  • Palumbo v. Butler, 26 So. 3d 723 (Fla. 2d DCA 2010)
    …tuition. But, well before the final hearing, she began paying the school directly. On the record before us, Ms. Palumbo properly concedes that the anticipated gifts should not have been included in Mr. Butler’s income. See, e.g., Oluwek v. Oluwek, 2 So. 3d 1088, 1039 (Fla. 2d DCA 2009) (holding trial court may not impute income based on gifts unless gifts are continuing and not sporadic). We reverse and remand for the trial court to recalculate child support. We affirm on all remaining issues without fur…

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