ROBERT EVINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed probation revocation based on violations of conditions (3) and (13) but reversed the finding of violation of condition (5) because arrest alone cannot support revocation without proof of actual criminal conduct.
Probation may not be revoked based solely on arrest; the State must present evidence of actual commission of a new criminal offense.
[1] Probation revocation cannot be based solely on proof of arrest for a new criminal offense; the State must present evidence that the probationer actually committed the off…
Previewing 1 of 1 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“It is improper to revoke probation based solely upon proof that the probationer had been arrested.”
Court citing Prater v. State and Hines v. State for the principle that arrest without proof of actual criminal conduct cannot support probation revocation.
Appellant was on probation and was arrested for a new criminal offense. The trial court found violations of conditions (3), (13), and (5) of his proba…
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We affirm the trial court’s revocation of Appellant’s probation. The State presented competent substantial evidence at trial that Appellant violated conditions (3) and (13) of his probation. However, we conclude that the court erred in finding that Appellant also violated condition (5) of his probation by being arrested for committing a new criminal offense because “[i]t is improper to revoke probation based solely upon proof that the probationer had been arrested.” Prater v. State, 161 So.3d 489, 491 (Fla. 5th DCA 2014) (citing Hines v. State, 358 So.2d 183, 185 (Fla.1978)). The State did not separately present evidence at trial that Appellant had committed a new criminal offense while on probation.
We find it unnecessary to remand this case for the trial court to reconsider the prison sentence that it had imposed because it is clear from the record that the court would have revoked Appellant’s probation and imposed the same sentence based solely upon Appellant’s violation of conditions (3) and (13) of his probation. See Arnau v. State, 80 So.3d 457 (Fla. 1st DCA 2012); Ware v. State, 54 So.3d 1074 (Fla. 1st DCA 2011).
Accordingly, we affirm the revocation of probation based upon the violations of conditions (3) and (13) and remand for the trial court to strike that portion of the revocation order finding that appellant violated condition (5) of his probation.
AFFIRMED and REMANDED for correction of revocation order.
TORPY, COHEN and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Payet v. State, 357 So. 3d 172 (Fla. 5th DCA 2022)
Authorities Cited
- Hines v. State, 358 So. 2d 183 (Fla. 1978)
- Octavius D. Ware v. State, 54 So. 3d 1074 (Fla. 1st DCA 2011)
- Prater v. State, 161 So. 3d 489 (Fla. 5th DCA 2014)
- Arnau v. State, 80 So. 3d 457 (Fla. 1st DCA 2012)