JAMAL THOMAS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that probation revocation was improper for unalleged and involuntary community service violations but affirmed revocation based on a new offense of aggravated battery.
[1] A trial court abuses its discretion by revoking probation for a violation not alleged in the affidavit of violation of probation.
[2] Failure to complete community service hours cannot be deemed willful when the defendant is unable to comply due to incarceration on unrelated charges.
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Join FLexlaw to unlock all legal intelligenceJamal Thomas appealed the revocation of his probation for failing to complete community service and for committing aggravated battery while incarcerat…
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Jamal Thomas appeals from the revocation of his probation for failing to complete community service hours pursuant to the terms of a plea agreement and for committing the new offense of aggravated battery during a jailhouse fight while in custody on unrelated charges.1 We agree it was error to revoke probation for failure to complete community service hours because this basis was not alleged in the affidavit of violation of probation, see Johnson v. State, 899 So.2d 436, 438 (Fla. 4th DCA 2005) (“The trial court abused its discretion and violated Johnson’s due process rights by revoking her probation for a charge not alleged in the affidavit.”), and because his failure was not willful because he was unable to complete his service while incarcerated on the unrelated charges. See Muthra v. State, 777 So.2d 1067, 1068 (Fla. 3d DCA 2001) (finding that the defendant’s failure to complete community service hours “cannot be deemed willful where he was unable to *938comply with the special conditions due to his incarceration on unrelated charges during the last three months of the probationary period”).
We nevertheless affirm the revocation of his probation for committing the new offense of aggravated battery. See Haygood v. State, 687 So.2d 318, 319 (Fla. 4th DCA 1997) (affirming revocation of probation where the record was clear that the trial court would have still revoked probation solely on the proper violations of community control).
The State concedes that the trial court erred by failing to enter a written order revoking Thomas’ probation. See Forbes v. State, 127 So.3d 826 (Fla. 4th DCA 2013). We therefore remand for entry of a written order that conforms with the trial court’s oral pronouncement only as to Thomas’ willful and substantial violation of his probation for committing the new offense of aggravated battery.
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Terence Keith Gray v. State, 170 So. 3d 890 (Fla. 3d DCA 2015)…ing the sexual battery offense. As the State properly concedes, because the affidavits did not allege a violation of probation for that offense, the trial court erred in revoking Gray’s probation based on that additional ground. See Thomas v. State, 159 So. 3d 937 (Fla. 3d DCA 2015) (holding that it was error to revoke probation when the basis for the violation was not alleged in the violation of probation affidavit); Osteen v. State, 147 So. 3d 678, 679 (Fla. 1st DCA 2014) (“It is well settled that the revoc…
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Brown v. State, 260 So. 3d 1101 (Fla. 3d DCA 2018)
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Raimondi v. State, 253 So. 3d 749 (Fla. 3d DCA 2018)…o. 2d 879, 880 (Fla. 4th DCA 2004); see also Gray v. State, 170 So. 3d 890, 892 (Fla. 3d DCA 2015) (holding that trial court erred in revoking Gray’s probation based on offense not alleged in affidavit of violation of probation); Thomas v. State, 159 So. 3d 937, 937 (Fla. 3d DCA 2015) (finding that trial court erred in revoking probation for offense not alleged in affidavit of violation of probation). Here, the trial court conducted a hearing concerning the events that occurred on September 28, 2016, a…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haygood v. State, 687 So. 2d 318 (Fla. 4th DCA 1997)
- Muthra v. State, 777 So. 2d 1067 (Fla. 3d DCA 2001)
- Johnson v. State, 899 So. 2d 436 (Fla. 4th DCA 2005)
- Tarzmyn D. Forbes v. State, 127 So. 3d 826 (Fla. 4th DCA 2013)