JONATHAN CALDWELL, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred by failing to hear argument on sentencing after revoking probation, and by including a scrivener's error in the order.
Appellant's probation was revoked for lewd and lascivious battery. The trial court did not allow argument on sentencing and the order contained a fact…
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Jonathan Caldwell appeals the revocation of his probation for lewd and lascivious battery upon an elderly or disabled adult. We affirm without comment the trial court’s finding that Caldwell violated his probation. However, Caldwell argues, the State concedes, and we agree that the trial court erred by failing to hear any argument on sentencing. See Estevez v. State, 705 So.2d 972, 973 (Fla. 3d DCA 1998) (stating a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion (citing Black v. Romano, 471 U.S. 606, 614, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985))). Thus, we remand for the limited purpose of a sentencing hearing, at which Caldwell can present mitigating evidence.1
Additionally, we remand for the trial court to correct a scrivener’s error in *780the order revoking probation. The order incorrectly states that Caldwell admitted violating probation and that the court accepted the admission; however, the record shows that the court held a hearing on the violation, that Caldwell contested the fact that he violated, and that the court found a willful and substantial violation. See Neal v. State, 62 So.3d 1277, 1278 (Fla. 2d DCA 2011).
Affirmed in part, reversed in part, and remanded for further proceedings and correction of a scrivener’s error.
KHOUZAM and MORRIS, JJ., Concur.
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Hamilton v. State, 128 So. 3d 177 (Fla. 2d DCA 2013)…es that Hamilton admitted to violating his probation even though the trial court conducted a revocation hearing prior to finding him in violation. Accordingly, we remand for the trial court to correct this scrivener’s error. See Cald-ivell v. State, 72 So. 3d 779, 779-80 (Fla. 2d DCA 2011); Neal v. State, 62 So. 3d 1277, 1278 (Fla. 2d DCA 2011). Affirmed and remanded with instructions. WALLACE and KHOUZAM, JJ., Concur.…
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Johnpier v. State, 89 So. 3d 996 (Fla. 2d DCA 2012)…KELLY, Judge. Christopher Johnpier appeals from the sentence imposed on him after his probation was revoked. He argues that the trial court erred by refusing to hear any argument on sentencing. We agree and reverse. See Caldwell v. State, 72 So. 3d 779, 779 (Fla. 2d DCA 2011) (citing Estevez v. State, 705 So. 2d 972, 973 (Fla. 3d DCA 1998)) (holding that a probationer must have an opportunity to be heard regarding what sentence should be imposed and to present mitigating evidence). Accordingly,…
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Amason v. State, 76 So. 3d 374 (Fla. 2d DCA 2011)…ce and argue for sentencing alternatives when the court has sentencing discretion. Id. at 614, 105 S.Ct. 2254. A trial court must give a probationer an opportunity to be heard on sentencing in probation revocation proceedings. See Caldwell v. State, 72 So. 3d 779, 779 (Fla. 2d DCA 2011); Estevez v. State, 705 So. 2d 972, 978 (Fla. 3d DCA 1998). After the trial court’s brief questioning of Hair and Amason, defense counsel tried to interject, but the trial court cut her off three times. Defense counsel was no…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Black v. Romano, 471 U.S. 606 (U.S. 1985)
- Manrique Estevez v. State, 705 So. 2d 972 (Fla. 3d DCA 1998)
- Neal v. State, 62 So. 3d 1277 (Fla. 2d DCA 2011)