FREDERICK KELLY MACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed probation revocation orders because the court revoked probation based on offenses other than the trespass alleged in the violation affidavit, violating the requirement that revocation must be based on the specific violation charged.
Probation cannot be revoked for one reason when the affidavit of violation states another.
[1] Probation revocation must be based on the specific violation alleged in the affidavit of violation, not on other offenses discovered at the hearing.
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Join FLexlaw to unlock all legal intelligenceMack's probation supervisor alleged violation of the condition to live honorably by trespassing on Graybar Electric property. At the revocation hearin…
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PER CURIAM.
The above appeals are from orders revoking previous orders of probation in three criminal cases and entering adjudications of guilt and consecutive sentences to the State Prison. We reverse.
The affidavit of the probation supervisor alleged that the Appellant had violated Condition (E) of the Orders of Probation, i. e., failure to “live honorably,” by trespassing on the property of Graybar Electric. At the revocation hearing the evidence presented was totally insufficient to establish the charged trespass, although ample evidence was presented that indicated the Appellant may have been guilty of other offenses. Indeed, the court orally recognized this and obviously revoked probation on the basis of the other offenses. We have held, nevertheless, that probation cannot be revoked for one reason when the affidavit of violation states another. Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968); Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973).
Accordingly, the orders of revocation of probation entered herein are reversed and the judgments and sentences predicated thereon are vacated and set aside; and the causes are remanded for such additional proceedings as may be advised.
HOBSON, A. C. J., and McNULTY and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986)…last four violations, the trial court cannot revoke appellant’s probation for conduct not charged by affidavit of probation violation and warrant. See § 948.06(1), Fla.Stat. (1985); Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984); Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977). Because the affidavit and warrant appearing in the record do not charge these last four violations, the trial court erred in revoking appellant’s probation on this basis. As for the first violation, the trial court found that th…
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Hodges v. State, 370 So. 2d 78 (Fla. 2d DCA 1979)…enforcement officer upon three members of the Tampa Police Department, and the court revoked probation on that basis. This was error since a court may not revoke probation for a violation not alleged in the charging affidavit. E. g., Mack v. State, 342 So. 2d 562 (Fla.2d DCA 1977). Accordingly, we reverse and remand the case with directions that the trial court reinstate appellant’s probation.1 GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur. . The state will, of course, be free to seek the revocation of…
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Freiheit v. State, 458 So. 2d 1172 (Fla. 4th DCA 1984)…cites a number of cases in which this and other courts have held that the state cannot charge a probationer with commission of one offense and revoke his proba [*1173] tion upon proof of an entirely different offense. For example, see Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977); Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968). See also Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973), where the probationer was charged only with having been arrested for a felony. Though the proof adduced would have sup…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crum v. State, 286 So. 2d 268 (Fla. 4th DCA 1973)
- Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968)