HENRY OLIVER MCKINNON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry McKinnon appeals the revocation of his probation, challenging the sufficiency of evidence regarding violation of condition two (unauthorized residence change). The appellate court affirms the revocation based on sufficient evidence of other violations but remands to correct the written order to exclude the unsupported condition two finding.
The court affirmed the revocation because sufficient evidence supported findings of violations of conditions three, four, six, and eleven, even though there was insufficient evidence for the condition two violation. The court remanded to correct the written order to conform to the oral pronouncement and to delete the unsupported finding regarding condition two.
[1] A trial court's order revoking community control must be corrected to conform to the court's oral pronouncement of grounds for revocation, especially when the oral pronou…
[2] Allegations not proven by evidence at a community control revocation hearing should not be included in the order revoking community control.
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Join FLexlaw to unlock all legal intelligence“Because there was sufficient evidence supporting the judgment and sentence revoking McKinnon's probation, we affirm.”
Establishes that revocation may be affirmed despite insufficient evidence on one violation when other violations are adequately supported
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Join FLexlaw to unlock all legal intelligenceMcKinnon was serving a three-year probation when he was alleged to have violated multiple probation conditions: condition two by changing residence wi…
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Henry Oliver McKinnon appeals the judgment and sentence revoking and terminating his probation. He contends the lower court erred in finding a violation because there was insufficient evidence showing he violated condition two of his probation.1
While serving three years’ probation, McKinnon was alleged to have violated *1189condition two of his probation by changing his residence without first obtaining his probation officer’s consent and condition eleven of his probation by failing to report immediately to probation after his release from prison. An amended affidavit of violation was filed alleging that McKinnon violated conditions three, four, and six of his probation by committing new law violations in Duval County.
The evidence at the hearing supported the court’s finding that McKinnon violated conditions three, four, six, and eleven of his probation. However, there was insufficient evidence to support a finding that he violated condition two. Because there was sufficient evidence supporting the judgment and sentence revoking McKinnon’s probation, we affirm. See Davis v. State, 945 So.2d 607 (Fla. 4th DCA 2006) (affirming order revoking probation where hearing evidence supported finding of new law violations, even though there was insufficient evidence he failed to report).
At the hearing, the court orally announced McKinnon violated conditions two, three, four, six and eleven of his probation. The written order, however, only shows a finding that he violated conditions two and eleven. We therefore remand for correction of the order of revocation so that it conforms to the court’s oral pronouncement. See Nelson v. State, 601 So.2d 1347 (Fla. 4th DCA 1992) (remanding for correction of revocation order where written order did not conform to oral pronouncement). We also direct the court to delete its finding that McKinnon violated condition two.
AFFIRMED and REMANDED with Instructions.
PALMER and LAWSON, JJ., concur.
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Citator
Authorities Cited
- Davis v. State, 945 So. 2d 607 (Fla. 4th DCA 2006)
- Lange v. Dean Witter Reynolds, Inc., 601 So. 2d 1347 (Fla. 4th DCA 1992)