JONATHAN BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jonathan Brown appeals the revocation of his probation following a conviction for breaking and entering with intent to commit petit larceny. The Fourth District Court of Appeal affirmed the revocation, finding that the probationer was bound by his accepted probation conditions and that substantial direct evidence supported the revocation.
1) The court declined to address the vagueness challenge because Florida statute § 924.06(2) limits appeals of probation revocation to proceedings after the probation order was entered, and a probationer who accepts probation conditions cannot later challenge them. 2) Even assuming hearsay was present, the revocation was supported by sufficient direct, competent evidence—specifically, the officer's testimony regarding Brown's arrest at the scene, his consent to search, and the identification and admission of the stolen watches.
[1] An appeal of an order revoking probation may review only proceedings that occurred after the order of probation was entered.
[2] A defendant who accepts probation and violates its conditions cannot challenge the original order of probation on appeal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An appeal of an order revoking probation may review only proceedings after the order of probation.”
Establishes the statutory limitation on scope of appeal for probation revocation cases.
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Join FLexlaw to unlock all legal intelligenceBrown was placed on probation with a condition to 'live honorably' and engage in lawful conduct. He violated this condition by unlawfully breaking and…
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WALDEN, Judge.
Defendant was placed upon probation following a criminal offense. His probation was subsequently revoked. Defendant appeals. We affirm.
The probation condition involved was, “In all respects live honorably, work diligently at a lawful occupation, and support dependents, if any, to the best of defendant’s ability, and live within what income is available.”
The violation charged, which lead to revocation, was failing to “live honorably” for the second time, to-wit: unlawfully breaking and entering a dwelling house with intent to commit petit larceny.
Two appellate points are presented:
1. Whether requiring a probationer to “in all respects live honorably” is an unconstitutionally vague condition of probation ?
We decline to assay its merit. Section 924.06(2), F.S.1973, Appeal by defendant, provides:
“924.06 Appeal by defendant.—
**
“(2) An appeal of an order granting probation shall proceed in the same manner and have the same effect as an appeal of a judgment of conviction. An appeal of an order revoking probation may review only proceedings after the order of probation. . . . ” (Emphasis supplied.)
Thus, the above statute clearly limits this appeal to review of proceedings that occurred after the entry of the order of probation. Probation is a matter of grace and when the defendant chose to accept the conditions of his probation he can not now, having violated those conditions, challenge the order. If he had any grievance, he could have either refused probation or appealed the order and its contents. Section 924.06(2) F.S.1973; Hardrick v. State, 293 So. 2d 135 (2d D.C.A.Fla.1974).
The second appellate point is :
II. Whether a revocation of probation based solely on hearsay should be vacated ?
We have examined the record and, while there is hearsay evidence reflected, there is additional direct, competent evidence sufficient to substantiate the appealed order. For instance, an officer testified that he arrested the defendant at the scene of the burglary and received oral and written consent to search defendant’s car. The officer did so and found two watches hidden therein, identified as the burglary loot. The watches were admitted into evidence. See White v. State, 301 So. 2d 464 (1st D.C.A.Fla.1974); Hampton v. State, 276 So. 2d 497 (3d D.C.A.Fla.1973); Crossin v. State, 244 So. 2d 142 (4th D.C.A.Fla.1971); Franklin v. State, 226 So. 2d 461 (2d D.C.A.Fla.1969); McNeely v. State, 186 So. 2d 520 (2d D.C.A.Fla.1966).
We find no reversible error. Affirmed.
OWEN, C. J, and MAGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (20 total)
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…sary. The result is that the defendant has his cake and eats it too, that is, he has probation but without the conditions that the trial judge considered essential. At one time, appellate courts endeavored to prevent this result, see Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974), but more recently the courts have considered the constitutional rights of a probationer as if he were a law-abiding citizen and have liberally stricken condi [*1365] tions authorizing governmental action merely because such cond…
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Combs v. State, 351 So. 2d 1103 (Fla. 4th DCA 1977)…ation proceedings, a defendant’s probation cannot be revoked solely on the basis of hearsay evidence. Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA opinion filed April 7, 1977); Robbins v. State, 318 So. 2d 472 (Fla. 4th DCA 1975); Brown v. State, 305 So. 2d 309 (Fla. 4th DCA 1974). The State attempts to avoid this rule by pointing out that other evidence was offered at the hearing concerning the burglary. But none of this evidence in any way connected Combs to the burglary. The rule requiring more than he…
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Matthews v. State, 736 So. 2d 72 (Fla. 4th DCA 1999)…on. This court has held that a probationer, who has accepted the conditions of his or her probation, is not permitted to challenge one of the conditions of probation after probation has been revoked for a violation of that condition. Brown v. State, 305 So. 2d 309, 310 (Fla. 4th DCA 1974); Welsh v. State, 326 So. 2d 37, 38 (Fla. 4th DCA 1976) (stating that “it is ... too late to question” a condition of probation after probation has been revoked); see also Gaskins v. State, 607 So. 2d 475, 476 (Fla. 1st DCA 1…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McNEELY v. State, 186 So. 2d 520 (Fla. 2d DCA 1966)
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)
- White v. State, 301 So. 2d 464 (Fla. 1st DCA 1974)
- Hampton v. State, 276 So. 2d 497 (Fla. 3d DCA 1973)
- Johnson v. State, 244 So. 2d 142 (Fla. 1st DCA 1971)
- Hardrick v. State, 293 So. 2d 135 (Fla. 2d DCA 1974)