DONALD FRANK WARE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Ware challenges the revocation of his probation after being acquitted of 1967 breaking and entering charges. The court affirms the revocation, holding that probation revocation does not require the same proof standard as criminal conviction and that no magistrate warrant is necessary for a probation violation hearing.
No magistrate warrant is required for a probation violation hearing if the defendant receives due notice and an opportunity to be heard. The trial judge did not abuse his discretion in revoking probation, as probation revocation does not require the same proof standard as criminal conviction.
“It is not incumbent upon a trial judge, upon a hearing for parole violation which had originally been entered as a result of a guilty plea, to find that the appellant had violated the terms of his parole with the same exactness as required for original conviction.”
Establishes the reduced burden of proof in probation revocation proceedings compared to criminal trials
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Join FLexlaw to unlock all legal intelligenceIn 1965, Ware pleaded guilty to several charges and received five years' probation. In 1967, he was charged with breaking and entering and possession …
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In 1965, the appellant pleaded guilty to several informations in the Criminal Court of Record in and for Dade County, Florida, and was placed on five years’ probation. In 1967, he was informed against for breaking and entering and possession of burglary tools. When this subsequent information came on for trial, it was stipulated by private counsel for the appellant that the violation of probation could be heard at the same time as the trial. At the conclusion of the matter, which was tried non-jury, the trial judge acquitted the appellant *443of the 1967 charges but revoked his probation, which had been entered as a result of the guilty pleas on the 1965 charges. The appellant appeals and urges, as grounds for reversal, that (1) the parole violation could not have been heard without a warrant having been issued by a magistrate; (2) the trial judge abused his discretion in revoking the parole.
As to the first ground, there is no mandatory requirement that a warrant be issued by a magistrate. It is sufficient if the alleged parole violation comes to the attention of the court and that the defendant was given due notice of the alleged violation and an opportunity to be heard. Brill v. State, 159 Fla. 682, 32 So.2d 607; State ex rel. Roberts v. Cochran, Fla.1962, 140 So.2d 597; McNeely v. State, Fla. App.1966, 186 So.2d 520. See: Gardner v. State, Fla.App.1969, 219 So.2d 100 (1969).
The appellant also contends that the trial judge abused his discretion in revoking his probation because he found him not guilty of the 1967 crime as charged. It is not incumbent upon a trial judge, upon a hearing for parole violation which had originally been entered as a result of a guilty plea, to find that the appellant had violated the terms of his parole with the same exactness as required for original conviction. Brill v. State, supra; State ex rel. Ard v. Shelby, Fla.App. 1957, 97 So.2d 631; State v. Cochran, supra; Roberts v. State, Fla.App.1963, 154 So.2d 695; McNeely v. State, supra.
Examining this record in light of the principles enunciated in the above authorities, we fail to find that the trial judge abused his discretion in revoking the appellant’s parole, when the record reveals that the appellant was apprehended at 1:00 o’clock in the morning in an alley behind a store which had been broken into, and that the appellant was hiding behind a barrel with burglary tools on the ground between his hiding place and the back door of the burglarized premises. It is apparent that the trial judge directed a verdict for the defendant because the State failed to prove the ownership of the premises burglarized.
Therefore, for the reasons above stated, the order here under review be and the same is hereby affirmed.
Affirmed.
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Citator
Cited By
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Dees v. State, 295 So. 2d 296 (Fla. 1974)…plemented by Rule 23-2.09 of the Parole and Probation Commission, Florida Administrative Code, does not specify “written” notice and “disclosure of evidence,” we find implicit in the remainder of the statute that “due notice” be given Ware v. State, 219 So. 2d 442 (Fla.App.3d 1969). More specifically, in light of Morrissey, supra, we hold that, since June 29, 1972, the date on which Morrissey, supra, was rendered, “due notice”' — as amplified and enlarged by that decision — requires written notice to the paro…
Authorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- State ex rel. Lewis Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962)
- McNEELY v. State, 186 So. 2d 520 (Fla. 2d DCA 1966)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- State of Fla. ex rel. Fritz ARD v. Emmett Shelby, 97 So. 2d 631 (Fla. 1st DCA 1957)
- Roberts v. State, 154 So. 2d 695 (Fla. 2d DCA 1963)
- Gardner v. State, 219 So. 2d 100 (Fla. 3d DCA 1969)