BOY ELIJAH O'STEEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a probation revocation judgment, holding that revocation cannot be based on conduct occurring before probation was imposed, only on conduct during the probation period.
No. Probation may only be revoked based on conduct occurring during the probation period, not conduct that predates the probation order. The revocation was therefore improper.
[1] Probation may not be revoked based on conduct that occurred prior to the period of probation.
[2] A conviction for an offense committed prior to the imposition of probation cannot serve as grounds for revoking that probation.
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Join FLexlaw to unlock all legal intelligence“the conduct contemplated by the statute as grounds for revocation was conduct occurring during the period of revocation”
Establishes the foundational rule that probation revocation must be based on post-probation conduct
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Join FLexlaw to unlock all legal intelligenceO'Steen pled guilty to receiving stolen property on January 12, 1971, and was placed on five-year probation. On July 2, 1971, a supplemental rule to s…
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Appellant seeks reversal of a judgment finding him guilty of violation of probation.
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.
In Brill v. State, 159 Fla. 682, 32 So.2d 607 (Fla.1947), the Supreme Court speaking of conduct that would warrant revocation of probation said that the conduct contemplated by the statute as grounds for revocation was conduct occurring during the period of revocation. In Egantoff v. State, 208 So.2d 843 (Fla.App.1968), the court said:
“It is now settled law in this State that probation may be revoked solely upon conviction by a jury of a subsequent crime, . . . ”
On December 21, 1970, an information charging appellant with the offenses of receiving stolen property was filed against him in Duval County. He pled guilty to that charge on January 12, 1971, and was placed on probation for five years. On April 2, 1971, he was served with a rule to show cause why his probation should not be revoked because of certain conduct violative of the conditions of his probation order, which conduct was engaged in subsequent to his being placed on probation. On July 2, 1971, a supplemental rule to show cause was served on appellant based on the allegation that he had violated the conditions of his probation in that he was convicted on June 18, 1971, of committing the offense of breaking and entering with the intent to commit a felony. While the June 18, 1971, conviction occurred during his term of probation, the conduct giving rise to that conviction occurred on November 16, 1970, prior to the date on which appellant was placed on probation. At the probation revocation hearing, no evidence was received or considered regarding the infractions alleged in the April 2, 1971, rule to show cause. Rather, the only conduct of appellant’s which was considered was that relating to the charges on which the supple*209mental rule to show cause of July 2, 1971, was based. As noted above, since the latter charge was based on conduct occurring pior to the probation order, it cannot legally form the basis of revocation of probation. Accordingly, we reverse the judgment reviewed herein and remand this cause to the trial court for a further hearing on the charges of probation violation set out in the April 2, 1971, rule to show cause, any one of which allegations of violation, if shown to be true, would be sufficient ground to revoke appellant’s probation since that alleged conduct did occur subsequent to probation order.
Reversed and remanded.
SPECTOR, C. J., and WIGGINTON and JOHNSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Kimble v. State, 396 So. 2d 815 (Fla. 4th DCA 1981)…term of probation has expired. The rule has been rather firmly established that conduct giving rise to revocation of probation must occur during the period of [*817] probation. Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). Upon the expiration of a probationary period, the trial court is divested of all jurisdiction over the probationer and may not entertain a revocation proceeding for a violation which occurred during the term of probation unless,…
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Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977)…may be revoked solely on the basis of a conviction for a subsequent crime. Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968). However, the illegal activity giving rise to the conviction must occur during the probationary period. O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). Improper conduct occurring prior to entry of the probation order cannot be the basis for revocation even though the conviction resulting from such conduct occurs while the defendant is on probation. Id. The only evidence that A…
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Dearing v. State, 388 So. 2d 296 (Fla. 3d DCA 1980)…898 (Fla.1979); Williams v. United States, 443 F. 2d 1151 (5th Cir. 1971). This case is therefore entirely distinguishable from Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977), upon which Dearing heavily relies. Compare also, O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). In Demchak, the defendant had been found guilty only of a conspiracy which, like the one involved here, allegedly spanned a period both before and after he had been placed on probation. In decisive contrast to our situation, how…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brill v. State, 159 Fla. 682 (Fla. 1947)
- Gonzalez v. State, 159 Fla. 681 (Fla. 1947)
- Egantoff v. State, 208 So. 2d 843 (Fla. 2d DCA 1968)