GARCIA, JR.

v.

STATE OF FLORIDA

1 The affidavit additionally alleged that Garcia had violated his probation by driving while his license was revoked as a habitual offender on November 27, 2023.

2 The court determined that Garcia had not violated his probation by driving while his license was revoked. we review de novo "question[s] about whether the proven conduct legally constitutes a violation of probation." Hill v. State, 301 So. 3d 1081, 1082 (Fla. 1st DCA 2020) (citing Staples v. State, 202 So. 3d 28, 32 (Fla. 2016)). Here, the trial court erred in revoking Garcia's probation based on his grand theft of a motor vehicle. Although the affidavit alleged that the grand theft had occurred on July 29, 2023, and the evidence established that Garcia had originally stolen the vehicle on that date, the court did not impose the operative probationary sentence until November 6, 2023, and "the law does not permit the revocation of a defendant's probation for conduct which occurs prior to the entry of the probation order." Malloy v. State, 380 So. 2d 501, 502 (Fla. 2d DCA 1980); see also Hinton v. State, 462 So. 2d 583, 584 (Fla. 2d DCA 1985) ("The trial court could not, however, revoke appellant's probation because he had not yet been placed on probation at the time of the alleged violation."); Guerra v. State, 10 So. 3d 678, 679 (Fla. 3d DCA 2009) ("[A] violation of probation cannot be based on conduct that predates the probation sentence."); O'steen v. State, 261 So. 2d 208, 208 (Fla. 1st DCA 1972) ("Appellant contends that the trial court's revocation of probation was erroneously based on conduct engaged in by appellant prior to his having been placed on probation. We agree."). And although the trial court correctly determined that Garcia also had been committing grand theft on November 27, 2023, by continuing to use the stolen vehicle on that date, see § 812.014(1), Fla. Stat. (2023), that is beside the point. The violation affidavit did not allege that Garcia had violated probation by committing grand theft on November 27, 2023, and due process precludes revocation of probation based on conduct not alleged in the affidavit. Vann v. State, 288 So. 3d 757, 758 (Fla. 2d DCA 2020) (quoting Johnson v. State, 811 So. 2d 749, 750 (Fla. 2d DCA 2002)). More specifically, if an affidavit alleges that a violation occurred on a particular date, the probationer may not be found to have violated probation unless shown to have committed the violation on that alleged date. See Johnson, 811 So. 2d at 750 (reversing revocation order based on finding that defendant had not remained confined to his approved residence on April 11, 2000, where violation affidavit alleged only his failure to remain confined on March 31, 2000); Hodges v. State, 262 So. 3d 842, 844–45 (Fla. 1st DCA 2018) (reversing revocation order because the violation affidavit alleged that defendant had improperly left his county of residence when he "left Nassau County and entered Duval County on March 8, 2017," but "no evidence was presented that [the defendant] was in Duval County on March 8, 2017"; rather, evidence established only that defendant had been arrested in Duval County on June 15, 2017); Bourne v. State, 869 So. 2d 606, 606–07 (Fla. 1st DCA 2004) (holding that although the violation affidavit alleged that the defendant had been cited for careless driving on June 18, 2002, the court erroneously concluded that defendant had violated his probation by driving carelessly on April 8, 2002); Perkins v. State, 842 So. 2d 275, 277–78 (Fla. 1st DCA 2003) (reversing revocation order where the violation affidavit alleged that the violation had occurred in April but the evidence established and the court found that the violation had occurred "during the months of May through November"). We therefore reverse the revocation order (and attendant sentence) and remand for further proceedings consistent with this opinion. Reversed and remanded. KHOUZAM and BLACK, JJ., Concur. Opinion subject to revision prior to official publication.