CRAIG LYDELL LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenged the trial court's dismissal of his motion for postconviction DNA testing, arguing the court erred in denying the motion based on appellant's resentencing after a probation violation. The appellate court held that a probation violation does not preclude postconviction DNA testing of evidence related to the original charge, as resentencing after revocation is for the original offense, not the violation itself.
The trial court erred in denying the motion based on the probation violation. Appellant is not precluded from seeking postconviction DNA testing of evidence relevant to the original lewd and lascivious battery charge merely because his sentence was entered following a probation violation, since resentencing after probation revocation applies to the original charge, not the violation itself.
[1] A defendant resentenced for an original offense after violating probation is not precluded from seeking postconviction DNA testing of evidence relevant to the original of…
[2] A violation of probation is not an independent offense; rather, a defendant is resentenced for the original charge upon revocation of probation.
Previewing 2 of 3 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 'violation of probation is not itself an independent offense punishable at law in Florida.'”
Establishes the fundamental principle that probation violations are not separate crimes, supporting the conclusion that sentencing after revocation applies to the original charge.
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Join FLexlaw to unlock all legal intelligenceAppellant entered a no contest plea to lewd and lascivious battery on August 22, 2005, and was sentenced to 15 years' probation. After two probation v…
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Appellant challenges the trial court’s dismissal of his motion for postconvietion DNA testing which he filed pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes. Appellant raises several issues but we address only one: whether the trial court erred in finding appellant was precluded from seeking postconvietion DNA testing because he was resentenced after violating probation. We find the trial court erred and reverse and remand for consideration of the motion on the merits.
In its order denying appellant’s motion for postconvietion DNA testing, the court noted on August 22, 2005, appellant entered a no contest plea to one count of lewd and lascivious battery and was sentenced to 15 years’ probation. On October 18, 2005, the court found appellant violated the terms of his probation, but his sentence was reinstated. On January 24, 2006, the court again found appellant violated probation and his probation was revoked and he was sentenced to 15 years in prison.
In denying his motion for postconvietion DNA testing, the trial court found appellant was precluded from challenging the evidence relevant to the lewd and lascivious battery charge because appellant’s current sentence was entered as a result of his violation of probation. The court reasoned this challenge would have the effect of “undermining the finality of a VOP judgment and sentence.”
However, “[a] ‘violation of probation is not itself an independent offense punishable at law in Florida.’ ” Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (quoting Lambert v. State, 545 So.2d 838, 841 (Fla.1989)). “Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may ‘impose any sen*574tence which it might have originally imposed before placing the probationer or offender on probation or into community control.’ ” Cozza, 756 So.2d at 273 (quoting § 948.06(1), Fla. Stat. (1995), now codified at § 948.06(2)(b), Fla. Stat. (2009)).
When appellant’s probation was revoked, he was sentenced for lewd and lascivious battery, not violation of probation. Therefore, the fact appellant’s sentence for lewd and lascivious battery was entered after violation of probation does not preclude him from seeking postconviction DNA testing of physical evidence relevant to the lewd and lascivious battery charge. Thus, we reverse and remand for the trial court to consider appellant’s motion on the merits.
REVERSED AND REMANDED.
KAHN and WEBSTER, JJ„ concur.
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Shields v. State, 296 So. 3d 967 (Fla. 2d DCA 2020)…n of probation should be treated the same way as the original sentencing. Under Florida law, a "violation of probation is not itself an independent offense punishable at law." Lambert v. State, 545 So. 2d 838, 841 (Fla. 1989); accord Lee v. State, 54 So. 3d 573, 573 (Fla. 1st DCA 2011). Rather, it is a violation of the terms of community supervision for an offense imposed as an alternative to a more severe punishment, which can result in the loss of that more lenient sentence and the imposition of a more…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Connor McDUFFIE v. Scotty's, Inc., 756 So. 2d 272 (Fla. 5th DCA 2000)
- Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)