MICHAEL JOSEPH DEMPSEY, III
v.
STATE OF FLORIDA
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A revocation of community control order must be remanded for correction when it includes a condition violation for which no evidence or findings were established at the violation hearing, even if the substantive revocation decision is affirmed.
[1] A trial court's finding of a violation of community control must be supported by competent, substantial evidence.
[2] A violation of community control based on failure to remain confined at home requires the State to present competent, substantial evidence that the absence was not approv…
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Join FLexlaw to unlock all legal intelligence“no evidence or findings pertained to a violation of Standard Condition 16”
The court's explanation for why the revocation orders required correction despite affirming the revocation decision
Dempsey appealed two orders revoking his community control entered on March 7, 2022. The trial court's nunc pro tunc orders cited violation of Standar…
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DAMOORGIAN, J.
Michael Joseph Dempsey, III (“Defendant”) appeals the two orders of revocation of community control entered in two separate cases. Both revocation orders were entered on March 7, 2022. Finding no merit to Defendant’s arguments on appeal for reversal, we affirm without further comment. Nonetheless, we are compelled to remand with instructions to correct both revocation orders because, as the State concedes, the orders identify a condition of community control which the State failed to prove Defendant violated.
After a hearing on Defendant’s violation of community control, the trial court made oral findings and entered a written order that provided, inter alia, the specific conditions of community control which Defendant had violated. Thereafter, on March 7, 2022, the trial court entered two nunc pro tunc orders of revocation of community control, both of which included violations of Standard Condition 16—failing to remain confined at an approved residence. However, as the State has conceded, no evidence or findings pertained to a violation of Standard Condition 16.
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Accordingly, we affirm the orders revoking Defendant’s community control and the corresponding sentences, but remand solely for entry of corrected revocation orders removing Standard Condition 16 as a ground for revocation. See Henry v. State, 313 So. 3d 757, 760 (Fla. 2d DCA 2020) (affirming the order revoking community control and the corresponding sentence but remanding for entry of a corrected revocation order to accurately reflect the correct conditions that were violated).
Affirmed and remanded with instructions. WARNER and KUNTZ, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.