KEVIN S. OSBORNE
v.
STATE OF FLORIDA
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A trial court is not required to hold an evidentiary hearing when ruling on a motion to modify existing probationary conditions under section 948.03(2), Florida Statutes, because that statute contains no such requirement, unlike section 948.06 which applies only to enhanced or additional terms.
[1] A trial court is not required to conduct an evidentiary hearing before denying a motion to modify existing probationary conditions under Florida Statute section 948.03(2)…
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“The test . . . as to whether a modification is really an enhancement, turns on whether the change is more restrictive than the original condition.”
Court distinguishing between modifications under section 948.03 and enhancements under section 948.06, citing Gerber v. State.
Osborne pled no contest to multiple felonies in December 2016 and was sentenced to three years' incarceration followed by seven years of probation. In…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Probation Modification cases and more on FLexlaw
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KEVIN S. OSBORNE, Petitioner, v. Case No. 5D18-3997 STATE OF FLORIDA, Respondent. ________________________________/ Opinion filed May3, 2019 Petition for Certiorari Review of Order from the Circuit Court for Sumter County, William H. Hallman, III, Judge. Valarie Linnen, Jacksonville, for Petitioner. Ashley Moody, Attorney General, Tallahassee, and Robin
A.
Compton, Assistant Attorney General, Daytona Beach, for Respondent.
SASSO, J.
Kevin S. Osborne (“Petitioner”) petitions this Court for a writ of certiorari to quash the trial court’s order denying his motions to modify probation. We deny the petition. In December 2016, Petitioner pled no contest to resisting a law enforcement officer without violence, felony fleeing, battery on a person 65 years of age or older, and child abuse without great bodily harm. Pursuant to a negotiated plea agreement, Petitioner was sentenced to three years’ incarceration, followed by seven years of probation.
2 In October 2018, Petitioner filed two motions seeking to rescind or modify the conditions of his probation. Specifically, Petitioner sought to modify the conditions requiring that he live with his father and wear an ankle monitor. In a single order, the trial court summarily denied both motions. Relying on Stuart v. State, 988 So. 2d 1287 (Fla. 2d DCA 2008), Petitioner argues that the trial court erred and departed from the essential requirements of the law in denying his motions without an evidentiary hearing. Section 948.03(2), Florida Statutes (2018), provides that a trial court may rescind or modify the terms and conditions of probation at any time during the probationary period. While section 948.06, Florida Statutes (2018), requires notice and a hearing before a court may modify a probationary sentence with enhanced or additional terms, nothing in chapter 948 requires a court to hold an evidentiary hearing upon receipt of a motion seeking modification of previously imposed conditions. See, e.g., Clark v. State, 579 So. 2d 109, 110-11, 110 n.3 (Fla. 1991) (holding that trial court erred in enhancing terms of probation without first conducting hearing, even though defendant agreed to modification, but distinguishing modification under section 948.06 from section 948.03); see also Gerber v. State, 856 So. 2d 1113, 1115 (Fla. 4th DCA 2003) (“The test . . . as to whether a modification is really an enhancement, turns on whether the change is more restrictive than the original condition.” (quoting Waldon v. State, 670 So. 2d 1155, 1159 (Fla. 4th DCA 1996))). Despite this, the Second District Court of Appeal held in Stuart and Dukharan v. State, 96 So. 3d 454 (Fla. 2d DCA 2012), that a trial court erred by denying a motion to modify conditions of probation without conducting an evidentiary hearing. The Dukharan court appeared to rely on the Stuart decision. See Dukharan, 96 So. 3d at 454. However,
PETITION FOR WRIT DENIED.
COHEN and GROSSHANS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- Waldon v. State, 670 So. 2d 1155 (Fla. 4th DCA 1996)
- Gerber v. State, 856 So. 2d 1113 (Fla. 4th DCA 2003)
- Cont'l Heritage Ins. Co. & A-1 Magic Bonding, Inc. v. State, 981 So. 2d 583 (Fla. 1st DCA 2008)
- Dolgencorp, Inc. v. Winn-Dixie Stores, Inc., 988 So. 2d 1287 (Fla. 5th DCA 2008)
- Stuart v. State, 988 So. 2d 1287 (Fla. 2d DCA 2008)
- Ramanand J. Dukharan v. State, 96 So. 3d 454 (Fla. 2d DCA 2012)