ROY ANTHONY BORGES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Borges appealed the revocation of his probation, arguing that the revocation hearing should have been postponed until the resolution of pending criminal charges against him to protect his Fifth Amendment rights. The Florida District Court of Appeal affirmed the revocation, holding that probation is a privilege and postponement of revocation proceedings is not required merely because subsequent criminal proceedings are pending.
The court held that probation is a privilege, not a right, and the mere fact that subsequent criminal proceedings are pending against a probationer does not require postponement of revocation proceedings. All procedural due process was afforded to Borges, and a probationer could lose his probation even if he were acquitted of subsequent criminal charges.
[1] Probation is a privilege accorded certain defendants in criminal proceedings.
[2] A probation revocation hearing may proceed even when subsequent criminal proceedings are pending against the probationer.
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Join FLexlaw to unlock all legal intelligence“Probation is a privilege accorded certain defendants in criminal proceedings.”
Establishes the fundamental principle that probation is a privilege, not a constitutional right, which is central to the court's holding.
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Join FLexlaw to unlock all legal intelligenceBorges was originally charged with buying, receiving, and concealing stolen property, pleaded guilty, and was placed on probation with conditions incl…
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The appellant was originally charged with buying, receiving and concealing stolen property. He pleaded guilty and was placed on probation. The order of probation, among other things, contained the following provisions: “Avoid injurious or vicious habits; avoid association with persons of harmful character or bad reputation.” “Live and remain at liberty without violating any law.” Subsequent thereto, his probation officer filed appropriate notice of revocation of probation, alleging:
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“He has been associating with one Howard Lester Johnson, a person known to *514police authorities to be a person of harmful character and bad reputation.
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“On May 13, 1970, Aforesaid failed to follow the instructions of his probation supervisor while being booked for violation of probation, and did, in fact, escape from custody.”
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The revocation proceeding was scheduled for hearing and, prior thereto, the State had filed a new information against the appellant and Howard Lester Johnson, charging them with the commission of a felony [exact charge not reflected in the record]. At the time of the revocation proceedings, the trial had not been had on this information. Counsel for the appellant attempted to secure an order from the trial court continuing the revocation proceedings until the trial on the second information could be had, contending it would violate the appellant’s due process to require him to proceed with the revocation proceedings when he might possibly subject himself to a violation of the privilege against self-incrimination if he took the stand in the revocation proceedings. The trial judge denied this request, and proceeded with the matter; heard evidence which clearly indicated that the appellant had violated the terms of his probation in several instances, revoked same, and duly sentenced him. This appeal ensued. The only point preserved for review was the failure of the trial judge to postpone the revocation proceedings until a time subsequent to the trial on the pending information.
We find no merit in this point. Probation is a privilege accorded certain defendants in criminal proceedings. State ex rel. Roberts v. Cochran, Fla.1962, 140 So.2d 597; Pickman v. State, Fla.App.1963, 155 So.2d 646; Martin v. State, Fla.App.1971, 243 So.2d 189. All procedural due process was accorded the defendant in the instant case [Brill v. State, 159 Fla.682, 32 So.2d 607; State v. Cochran, supra; Phillips v. State, Fla.App.1964, 165 So.2d 246; § 948.06, Fla.Stat., F.S.A.], and the mere fact that subsequent criminal proceedings may have been pending against the probationer would not in and of itself be grounds to continue the revocation hearing. The probationer could have lost his right to probation, notwithstanding the fact he may have been acquitted of the subsequent criminal charge. State ex rel. Roberts v. Cochran, supra; Roberts v. State, Fla.App.1963, 154 So.2d 695.
Therefore, for the reasons above stated, the order here under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)…evoking probation. Manning v. United States, supra; Brill v. State, supra. This Court has held that a formal conviction of a crime is not essential to enable the judge to revoke an order of probation. Brill v. State, supra; See also Borges v. State, 249 So. 2d 513 (Fla.1971); Roberts v. State, 154 So. 2d 695 (Fla.App.1963). Specifically in State v. Cochran, supra, this Court opined: “[6] Recurring now to the condition allegedly violated in the instant case, we find no requirement that a formal conviction mus…
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Haiflich v. State, 285 So. 2d 57 (Fla. 2d DCA 1973)…lly reviewed the other points raised by appellant and conclude that they are without merit. On authority of the law pronounced by our supreme court in the case of Brill v. State, 1947, 159 Fla. 682, 32 So. 2d 607, and Borges v. State, Fla.App.1971, 249 So. 2d 513, and the cases cited therein, the finding of the trial court that appellant violated the conditions of probation and the judgment and sentence appealed from should be and they are hereby Affirmed. HOBSON, Acting C. J., and McNULTY and BOARDMAN, JJ…
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Recio v. State, 605 So. 2d 553 (Fla. 3d DCA 1992)…heard. Randolph v. State, 292 So. 2d 374 (Fla. 3d DCA), cert. denied, 300 So. 2d 901 (Fla.1974). Defendant was afforded procedural due process in this case. The fact that defendant was acquitted of the criminal charge is irrelevant. Borges v. State, 249 So. 2d 513 (Fla. 3d DCA 1971). Finding that the evidence presented at the revocation hearing sufficiently showed that defendant [*555] “willfully and substantially” violated the terms of his probation, we affirm. Kirk v. State, 400 So. 2d 540 (Fla. 3d DCA 1981…
Authorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- State ex rel. Lewis Roberts v. Cochran, 140 So. 2d 597 (Fla. 1962)
- Shadrick A. Martin, Jr. v. State, 243 So. 2d 189 (Fla. 4th DCA 1971)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- Pickman v. State, 155 So. 2d 646 (Fla. 3d DCA 1963)
- Roberts v. State, 154 So. 2d 695 (Fla. 2d DCA 1963)
- Steil v. Starling, 165 So. 2d 246 (Fla. 1st DCA 1964)