OCTAVIUS D. WARE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In a probation revocation case, the court found that the trial court abused its discretion by finding a violation based on possession of a firearm by a convicted felon due to insufficient non-hearsay evidence, but affirmed the revocation based on a domestic battery offense which was adequately supported. The court remanded only to correct the written revocation order to reflect the proper violation.
The court held that the trial court abused its discretion in finding a firearm possession violation due to insufficient non-hearsay evidence, but remand was not necessary because the record clearly showed the court would have revoked probation and imposed the same sentence based solely on the adequately supported domestic battery violation.
[1] A trial court abuses its discretion in a probation revocation proceeding when the record lacks sufficient non-hearsay evidence to support a finding of a specific violatio…
[2] A written probation revocation order must conform to the trial court's oral pronouncement of the conditions violated.
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Join FLexlaw to unlock all legal intelligence“the trial court abused its discretion in determining that Appellant violated his probation by committing the offense of possession of a firearm by a convicted felon because the record does not contain sufficient non-hearsay evidence to support this finding”
Establishes the court's finding of abuse of discretion regarding the firearm possession violation
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Join FLexlaw to unlock all legal intelligenceAppellant Ware was on probation and was accused of violating it by committing two offenses: possession of a firearm by a convicted felon and domestic …
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In this probation revocation ease, the state properly concedes that the trial court’s written order does not conform to the court’s oral pronouncement concerning the conditions of probation Appellant violated. Additionally, we agree with Appellant that the trial court abused its discretion in determining that Appellant violated his probation by committing the offense of possession of a firearm by a convicted felon because the record does not contain sufficient non-hearsay evidence to support this finding. However, we need not remand for reconsideration based on this error because it is clear from the record that the trial court would have revoked Appellant’s probation and imposed the same sentence based solely on the domestic battery offense, which was supported by sufficient evidence.* Cf. Thomas v. *1075 State, 453 So.2d 156, 157 (Fla. 1st DCA 1984) (explaining that when a portion of a probation order is reversed, the court will remand for reconsideration if it cannot be determined from the record that the trial court would have revoked probation and imposed the same sentence on the remaining grounds). Accordingly, we remand to the trial court only to correct the revocation order to reflect that Appellant violated his probation by committing the offense of domestic battery. We affirm the other issues raised by Appellant without further comment.
AFFIRMED in part; REMANDED for correction of revocation order.
ROBERTS, CLARK and WETHERELL, JJ., concur.
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Cohen v. State, 171 So. 3d 179 (Fla. 3d DCA 2015)…ation and imposed the same sentence based solely on the charged violation of making an obscene phone call under section 365.16(l)(a). McKenzie v. State, — So. 3d -, 2013 WL 5994188, 38 Fla. L. Weekly D2379 (Fla. 3d DCA Nov. 13, 2013); Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011); Mata v. State, 31 So. 3d 257 (Fla. 4th DCA 2010). We therefore affirm the trial court’s finding of a violation of probation by committing the crime of making obscene phone calls, and we affirm the sentence imposed. We remand th…
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Octavius Ware v. State, 111 So. 3d 257 (Fla. 1st DCA 2013)…to being the aggressor in the fight and that most of her injuries were as a result of a fight two days earlier with another person. While there was sufficient evidence presented to find appellant guilty of violation of probation, see Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011) (affirming Ware’s revocation of probation), it is the actions of the state attorney’s office after the violation hearing that are of concern in this case. After the violation hearing, the state attorney’s office charged the alle…
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Arnau v. State, 80 So. 3d 457 (Fla. 1st DCA 2012)…. 1st DCA 2001). We need not remand for reconsideration because it is clear from the record that the trial court would have revoked appellant’s probation and imposed the same sentence based on his commission of two new offenses. See Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011). We affirm the revocation based upon the violations of condition (5) and remand to the trial court to strike that portion of the revocation order finding that appellant violated condition (10). AFFIRMED and REMANDED for corre…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thomas v. State, 453 So. 2d 156 (Fla. 1st DCA 1984)