CHANTAY WALLACE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed revocation of Wallace's probation for willful violation of conditions (petit theft and failure to complete programs) but remanded for corrected order excluding unsupported violations regarding ability to pay and untried bifurcated charges.
A trial court's probation revocation order must be supported by evidence of willful and material violation and cannot include violations where no evidence of ability to pay was presented or where charges were bifurcated and not tried.
[1] A probation revocation order cannot include violations based on failure to pay supervision costs or fees without evidence regarding the probationer's ability to pay.
[2] Probation violations based on bifurcated charges that were not tried at the probation violation hearing cannot be included in a revocation order.
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Join FLexlaw to unlock all legal intelligenceChantay Wallace was on probation with multiple conditions including payment of supervision costs, drug testing fees, completion of domestic violence a…
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Chantay Wallace appeals the trial court’s order revoking her probation. The evidence clearly supports the trial court’s finding that Wallace willfully and materially violated Condition 5 of her order of probation by committing the crime of petit theft while on probation and Special Condition 18 by failing to complete a domestic violence program and an anger management program. We therefore affirm the trial court’s order revoking Wallace’s probation and the twenty-four month sentence that was imposed.
We however remand this case, see Young v. State, 4 So.3d 1265, 1266 (Fla. 5th DCA 2009), with instructions to the trial court to enter a corrected written order because the trial court’s order revoking probation improperly included violations of Conditions 2 and 3 (failure to pay for the cost of supervision and drug testing fees, respectively), where no evidence was presented as to Wallace’s ability to pay those fees, and Condition 5 based on Wallace committing two other new law violations besides the previously referred to petit theft, where those additional new law violations were bifurcated and therefore not tried at the probation violation hearing. Resentencing is not required in this case because the sentence imposed was already the lowest sentence permissible under the guidelines and there was neither a motion nor an argument made to depart below the guidelines.
Affirmed and remanded.
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Citator
Cited By
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Calana-Reinoso v. State (Fla. 3d DCA 2020)…osed by the trial court (175.3 months in State prison) represents the lowest permissible sentence under the guidelines, and no motion for downward departure was filed. Therefore, a resentencing hearing is not required. See, e.g., Wallace v. State, 193 So. 3d 64 (Fla. 3d DCA 2016).…
Authorities Cited
- Latonya Young v. State, 4 So. 3d 1265 (Fla. 5th DCA 2009)