JOHN MCKENZIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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John McKenzie appealed his probation revocation, challenging eight violations cited by the trial court. Although the court agreed that one violation (criminal mischief) lacked evidentiary support, it affirmed the revocation based on the remaining seven violations and remanded solely for entry of a corrected order deleting the unsupported charge.
The trial court erred in including the criminal mischief violation in the revocation order where no evidence of property damage was presented. However, because the remaining seven violations were sufficient to support revocation and the same sentence would have been imposed, the revocation and sentence are affirmed. The case is remanded only for entry of a corrected order deleting the unsupported mischief violation.
[1] A criminal mischief charge should be dismissed where there is no evidence of damage to the property at issue.
[2] A probation revocation order may be affirmed even if one violation is unsupported by evidence, if the remaining violations are sufficient to support the revocation and th…
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Join FLexlaw to unlock all legal intelligence“A criminal mischief charge should be dismissed where there is no evidence of damage to the property at issue”
Establishes the legal standard that property damage evidence is required to support a criminal mischief charge
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Join FLexlaw to unlock all legal intelligenceMcKenzie was serving probation for certain offenses. The trial court revoked his probation based on eight alleged violations, including criminal misch…
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John McKenzie appeals from trial court orders that revoked his probation and imposed a sentence for the offenses for which he was serving probation. The order of revocation includes, among the eight violations listed, a statement that *30McKenzie violated his probation by committing criminal mischief on March, 27, 2011. McKenzie asserts, and the State does not contest, that the trial court erred by including the criminal mischief charge on the order of revocation, where the State did not present any evidence at the revocation hearing that McKenzie caused any property damage. We agree. See J.W.S. v. State, 899 So.2d 1276, 1277 (Fla. 2d DCA 2005) (“A criminal mischief charge should be dismissed where there is no evidence of damage to the property at issue”).
However, upon consideration of the entire record in this matter, we are confident both that the trial court would have revoked McKenzie’s probation on the basis of the remaining seven violations, and that the trial court would have imposed the same sentence. Accordingly, we affirm the trial court’s revocation of probation and the sentence imposed. See Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011) (holding that remand for reconsideration of entire revocation order was unnecessary where it was “clear from the record” that the trial court would have revoked probation and imposed the same sentence based solely on the remaining offense, which was supported by sufficient evidence). We reverse and remand, however, solely for entry of a corrected order of revocation that will, consistent with this opinion, delete the violation that states that McKenzie committed criminal mischief. See Sherwood v. State, 933 So.2d 43, 45 (Fla. 2d DCA 2006). McKenzie need not be present when the trial court enters the corrected order.
We affirm with respect to all other issues raised on appeal, without discussion.
Reversed, in part, affirmed, in part, and remanded.
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Citator
Cited By
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Fuentes v. State, 219 So. 3d 956 (Fla. 3d DCA 2017)…pellant’s probation and imposed the same sentence based solely upon the determination that appellant- committed the felony of uttering, a forged instrument while on probation. See Cohen v. State, 171 So. 3d 179 (Fla. 3d DCA 2015); McKenzie v. State, 201 So. 3d 29 (Fla. 3d DCA 2013).…
Authorities Cited
- Octavius D. Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011)
- Sherwood v. State, 933 So. 2d 43 (Fla. 2d DCA 2006)
- J.W.S. v. State, 899 So. 2d 1276 (Fla. 2d DCA 2005)