HAROLD A. TIRADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harold Tirado appeals the revocation of his community control based on alleged violations of two conditions. The court affirms the revocation based on the violation of condition five (three new law violations) but remands to strike the unsupported violation of condition twelve (curfew violation).
The court affirms the revocation of community control based on the violation of condition five, which constituted a willful and substantial violation supported by the greater weight of the evidence. The court reverses the finding of violation of condition twelve because no evidence established a willful and substantial violation of the curfew requirement, but remands rather than vacating because the record clearly shows the trial court would have revoked community control solely on the basis of the condition five violation.
[1] A trial court may revoke a defendant's community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial…
[2] A defendant's concession that the State established a willful and substantial violation of one condition of community control is sufficient to affirm the revocation based…
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Join FLexlaw to unlock all legal intelligence“A trial court may revoke a defendant's probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.”
Establishes the legal standard for revocation of community control in Florida
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Join FLexlaw to unlock all legal intelligenceOn November 5, 2009, Tirado was placed on community control. The State alleged violations of condition five (three new law violations) and condition t…
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Harold A. Tirado challenges the revocation of his community control, which was based on violations of conditions five and twelve of his community control. We affirm the revocation of community control based upon the violation of condition five but remand with instructions that the violation of condition twelve be stricken.
On November 5, 2009, the trial court signed an order placing Tirado on community control. Shortly thereafter, the State filed an affidavit alleging that Tirado had violated conditions five (by committing three new law violations) and twelve1 (by not remaining in his residence as required by his curfew). Following an evidentiary hearing, the trial court found that Tirado had violated both conditions of community control. Accordingly, the trial court revoked community control and sentenced Tirado to prison.
*1006“A trial court may revoke a defendant’s probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.” Dundas v. State, 891 So.2d 1178, 1179 (Fla. 2d DCA 2005). Tirado concedes that the State established a willful and substantial violation of condition five. We agree and affirm the trial court’s finding that he violated condition five of his community control.
However, Tirado argues that the court erred in also finding a willful violation of condition twelve and that we should remand the case to let the trial court determine whether it would have revoked community control in the absence of a violation of condition twelve. We agree that the trial court’s finding of a violation of condition twelve should be stricken because no evidence was presented establishing a willful and substantial violation of curfew. Nevertheless, it is abundantly clear from the transcript of the revocation hearing that the trial court would have revoked Tirado’s community control based solely on his violations of condition five (three new law violations). See, e.g., Bernier v. State, 951 So.2d 21, 22 (Fla. 2d DCA 2007) (upholding revocation of probation order where record made it clear that the court would have revoked probation solely on the basis of a violation of a single condition of probation). Therefore, we affirm the order revoking community control but remand for the trial court to strike the finding of a violation of condition twelve.
Affirmed; remanded with instructions.
LaROSE and MORRIS, JJ., Concur.
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James v. State, 98 So. 3d 618 (Fla. 2d DCA 2012)…eview of that revocation. Before a trial court may revoke a defendant’s probation, the State must prove by the preponderance of the evidence that the defendant willfully violated a substantial condition of his probation. See, e.g., Tirado v. State, 69 So. 3d 1005, 1006 (Fla. 2d DCA 2011); Lynom v. State, 816 So. 2d 1218, 1221 (Fla. 2d DCA 2002). In Adickes v. State, 712 So. 2d 815, 816 (Fla. 5th DCA 1998), the Fifth District reversed a revocation of probation when the evidence showed that Adickes had been ex…
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Villwock v. State, 122 So. 3d 933 (Fla. 2d DCA 2013)…icer on two different occasions and by changing his residence without his probation officer’s consent, and it is clear from the record that the trial court would have revoked Villwock’s probation based on these three violations. See Tirado v. State, 69 So. 3d 1005, 1006 (Fla. 2d DCA 2011). Therefore, we affirm the order revoking probation but remand for the trial court to strike the new law offense violation from the order of revocation. See id. We also note that the order of revocation states that Villwock…
Authorities Cited
- Bernier v. State, 951 So. 2d 21 (Fla. 2d DCA 2007)
- Dundas v. State, 891 So. 2d 1178 (Fla. 2d DCA 2005)