EARL RODGERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Earl Rodgers appealed the revocation of his probation for sexual activity with a child. The court affirmed the revocation but remanded to strike one unsupported violation regarding contact with the victim's brother, as the record lacked competent substantial evidence of that contact.
The court affirmed the revocation of probation because it was clear from the record that the trial court would have revoked probation based on the other proper violations, particularly contact with the victim's sixteen-year-old sister. However, the court remanded with directions to strike the violation regarding contact with the victim's brother, as it lacked evidentiary support.
[1] A probation revocation order may be affirmed when the trial court relies on both proper and improper grounds, provided the record clearly indicates the trial court would…
[2] A probation revocation order must be remanded for correction when a finding of violation is not supported by competent substantial evidence.
Previewing 2 of 3 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 trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation.”
Establishes the evidentiary standard for finding probation violations
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Join FLexlaw to unlock all legal intelligenceRodgers was serving probation for sexual activity with a child. The trial court found that he violated his probation by: (1) failing to provide all em…
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Earl Rodgers challenges the revocation of the probation he was serving for the offense of sexual activity with a child. We affirm the revocation of Rodgers’ probation but remand with directions to the trial court to strike that portion of the revocation order finding that Rodgers violated condition twenty-five of his supervision by having contact with the victim’s brother.
In its order of revocation, the trial court found that Rodgers violated his probation by (1) failing to provide all of his email addresses to his probation officer (condi1 tion seven), (2) having contact with the victim (condition twenty-two), and (3) having contact with the victim’s mother, the victim’s sister, and the victim’s brother (three violations of condition twenty-five). The record, however, does not contain competent substantial evidence that Rodgers had contact with the victim’s brother. As such, that violation is not supported by the greater weight of the evidence and must be stricken. See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (“The trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation.”).
Nevertheless, we affirm the revocation of Rodgers’ probation.
When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. Only when this court cannot determine from the record whether *804the trial court would have revoked the defendant’s probation' based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court.
Lee v. State, 67 So.3d 1199, 1201-02 (Fla. 2d DCA 2011) (citations omitted).
Here, it is clear from the record that the trial court would have revoked Rodgers’ probation based on his other violations, especially his having contact with the victim’s sixteen-year-old sister. Accordingly, we affirm the revocation of probation and remand with directions to the trial court to strike the violation of condition twenty-five based on Rodgers’ contact with the victim’s brother and to enter a corrected revocation order.
Affirmed and remanded.
CASANUEVA and MORRIS, JJ., Concur.
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Citator
Cited By
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Miller v. State, 253 So. 3d 768 (Fla. 2d DCA 2018)…affirm Ms. Miller's judgment and sentence; however, we remand with directions that the trial court correct the revocation order to reflect only that Ms. Miller admitted to violating conditions five and seven of her probation. See Rodgers v. State, 171 So. 3d 803, 803 (Fla. 2d DCA 2015) ("When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and o…
Authorities Cited
- Savage v. State, 120 So. 3d 619 (Fla. 2d DCA 2013)
- LEE v. State, 67 So. 3d 1199 (Fla. 2d DCA 2011)