DOMINEK D. GRANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Grant's probation was revoked based on findings that he used false information to obtain a driver's license and failed to pay restitution. The appellate court held that the restitution violation was improper without evidence of ability to pay, and that unauthorized possession of a driver's license was not charged and thus could not support revocation, but the conviction on the false information charge alone was sufficient to support revocation.
The trial court erred in finding violations for failure to pay restitution (without evidence of ability to pay) and unauthorized possession of a driver's license (not charged in the affidavit). However, the probation revocation is proper because the single violation of using false information to obtain a driver's license, which was charged, is substantial enough to warrant revocation. The written order must be remanded to conform to the oral pronouncement and to strike improper findings.
[1] A probation violation cannot be found based on failure to pay restitution without evidence of the probationer's ability to pay.
[2] A trial court may not find a probation violation based on an offense not charged in the affidavit of violation.
Previewing 2 of 5 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“the court could not violate his probation on that ground. Del Valle v. State, 80 So.3d 999, 1011-13 (Fla.2011)”
Establishes that lack of evidence regarding ability to pay restitution prevents a finding of probation violation on that ground
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Join FLexlaw to unlock all legal intelligenceGrant was on probation and faced a violation of probation hearing. The trial court found he violated probation by: (1) failing to pay restitution, (2)…
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In a violation of probation hearing, the trial court found that the appellant had violated his probation by failing to pay restitution, as well as “by using false information to obtain driver’s license and unauthorized possession of driver’s license-false driver’s license ID cards.” The state concedes that it did not offer evidence of appellant’s ability to pay restitution. Thus, the court could not violate his probation on that ground. Del Valle v. State, 80 So.3d 999, 1011-13 (Fla.2011). As to the second ground, the affidavit charging the violation charged the appellant with using false information to obtain a driver’s license. It did not charge him with unauthorized possession. Therefore, the court erred in finding a violation of probation for an offense not charged. Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003); Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000).
Nevertheless, the defendant’s probation could properly have been revoked based on using false information to obtain a driver’s license, behavior that was charged in the affidavits. See, e.g., Kiess v. State, 642 So.2d 1141, 1142 (Fla. 4th DCA 1994) (“Although the trial court could not find a violation of probation based solely on either contact with his stepchildren or the hearsay account of the physical contact incident, the single violation established of battery on a law enforcement officer is substantial enough to warrant revocation.”); Cherisma v. State, 789 So.2d 1247, 1247 (Fla. 4th DCA 2001) (finding trial court erred in finding appellant guilty of one count of amended violation of probation affidavit, but affirming because “the other armed robbery violation is more than substantial enough to warrant revocation”). As such, we affirm the court’s order revoking the probation.
We remand, however, not only to strike the finding of a violation for failure to pay restitution and unauthorized possession of a driver’s license, but to conform the written order of violation of probation to the oral pronouncement. “It is well settled that the written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge.”' Harrington v. State, 570 So.2d 1140, 1142 (Fla. 4th DCA 1990). Where the two are inconsistent, the inconsistent portions of the written order must be stricken. Id. The written order in this case included findings of failure to pay the costs of supervision and court costs, as well as failure to complete community service hours and the theft abatement course, none of which were orally pronounced by the court.
*437 Affirmed, but remanded to strike portions of the order of revocation in accordance with this opinion.
WARNER, GROSS and CONNER, JJ., concur.
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Citator
Cited By
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Genard Jenkins v. State (Fla. 4th DCA 2020)…ment on five of the issues. For the sixth issue, Jenkins argues the court’s oral pronouncement found him in violation of condition 5 of probation for committing a law offense not charged in the violation of probation affidavit. See Grant v. State, 137 So. 3d 436, 436 (Fla. 4th DCA 2014) (“It is well settled that the written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge.” (quoting Harrington v. State, 570 So. 2d 1140, 1142 (Fla. 4th…
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Javaris De'shon Allen v. State (Fla. 4th DCA 2022)…e written order of revocation of probation must conform to the oral pronouncements made at the revocation hearing by the trial judge. Where the two are inconsistent, the inconsistent portions of the written order must be stricken.” Grant v. State, 137 So. 3d 436, 436 (Fla. 4th DCA 2014) (internal citation and quotation marks omitted). Here, the written order found that the defendant had violated his probation by possessing a firearm and by committing burglary and theft. That finding did not conform to th…
Authorities Cited
- del Valle v. State, 80 So. 3d 999 (Fla. 2011)
- Gillis Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Kiess v. State, 642 So. 2d 1141 (Fla. 4th DCA 1994)
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Burtless v. Pallero, 570 So. 2d 1140 (Fla. 4th DCA 1990)
- Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990)
- Connor v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)
- Nagel v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)
- Cherisma v. State, 789 So. 2d 1247 (Fla. 4th DCA 2001)
- Gorlick v. Fla. Dep't of Child. & Families, 789 So. 2d 1247 (Fla. 4th DCA 2001)