J.D.D., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile pled guilty to lewd and lascivious offenses and was placed on probation. Without holding a violation of probation hearing, the trial court revoked his probation and committed him to a residential program based on the caregiver's inability to supervise him. The appellate court reversed, holding that due process requires a probation violation hearing before revocation or enhancement of probation terms.
A trial court may not revoke or enhance probation without first determining that the probationee violated the terms of probation. Due process and double jeopardy protections prohibit such action absent proof of a violation.
[1] A trial court cannot revoke or enhance probation without first determining that the probationer violated the terms of probation.
[2] Due process and double jeopardy protections prohibit a trial court from revoking or enhancing probation absent proof of a violation.
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Join FLexlaw to unlock all legal intelligence“the constitutional guarantees of due process and protection from double jeopardy prohibit a trial court from revoking or enhancing probation without first determining the probationee violated probation”
Establishes the constitutional standard requiring a violation finding before probation revocation or enhancement
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Join FLexlaw to unlock all legal intelligenceJ.D.D., a minor, pled guilty to two counts of lewd and lascivious molestation and one count of lewd and lascivious exhibition. The circuit court initi…
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Appellant, a minor, pled guilty to two counts of lewd and lascivious molestation and one count of lewd and lascivious exhibition. The circuit court entered a Disposition Order sentencing him to probation *821and releasing him into his mother’s custody pending placement with a more adequate caregiver. Eventually, the court placed Appellant with a caregiver, where he continued serving his probation. Soon thereafter, the court determined the caregiver was unable to satisfactorily supervise Appellant. The court entered a Modified Disposition Order adjudicating Appellant delinquent, revoking his probation and re-sentencing him to commitment in a high risk residential program to be followed by a term of post-commitment probation. The court did not conduct a violation of probation hearing prior to issuing the Modified Disposition Order.
Generally, a trial court has authority to modify or rescind the terms or conditions of probation it imposes. See § 948.03(2), Fla. Stat. (2007); see also State v. Springer, 965 So.2d 270 (Fla. 5th DCA 2007). However, the constitutional guarantees of due process and protection from double jeopardy prohibit a trial court from revoking or enhancing probation without first determining the probationee violated probation. See § 948.06, Fla. Stat. (2007); see also Burkhart v. State, 974 So .2d 1203 (Fla. 1st DCA 2008). Absent proof of a violation, a trial court cannot alter an order of probation by revoking or enhancing the terms thereof. See Clark v. State, 579 So.2d 109, 110-11 (Fla.1991); see also Burkhart, 974 So.2d at 1204-05.
Here, the circuit court committed fundamental error by revoking Appellant’s probation and resentencing him without determining he violated the terms of his probation. We therefore reverse the court’s final order and remand for further proceedings consistent with this opinion.
Additionally, the Modified Disposition Order incorrectly states Appellant was convicted of three counts of lewd or lascivious molestation. Appellant was actually convicted of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. We remand with directions that the circuit court’s final order reflect that Appellant pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition.
REVERSED and REMANDED.
HAWKES, C.J., VAN NORTWICK, and BROWNING, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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J.H. v. State, 71 So. 3d 202 (Fla. 5th DCA 2011)…probationer violated probation. § 948.06, Fla. Stat. (2010); Burkhart v. State, 974 So. 2d 1203 (Fla. 1st DCA 2008). Without such proof, “a trial court cannot alter an order of probation by revoking or enhancing the terms thereof.” J.D.D. v. State, 12 So. 3d 820, 821 (Fla. 1st DCA 2009). If it does so, it has violated the prohibition against double jeopardy. See Ashley v. State, 850 So. 2d 1265, 1267 (Fla.2003) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may…
Authorities Cited
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- State v. Springer, 965 So. 2d 270 (Fla. 5th DCA 2007)
- Burkhart v. State, 974 So. 2d 1203 (Fla. 1st DCA 2008)