ALBERT BARBER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Barber appeals the revocation of his probation for failing to file monthly written reports, a requirement imposed by his probation officer but not made an explicit condition of probation by the court. The Florida District Court of Appeal held that only the court may set conditions upon which probation can be revoked, and revocation cannot be based on violation of requirements not formally established as probation conditions, even if the probation officer has authority to impose such requirements.
Although the Department of Offender Rehabilitation may require a probationer to file periodic reports even if not formally made a probation condition, probation may not be revoked solely for failing to file such reports unless the court has expressly made the requirement a condition of probation. Only the court may set the conditions upon which probation may be revoked.
[1] Probation may not be revoked for failure to comply with an instruction from a probation officer unless that instruction was made a condition of probation by the court.
[2] Only the court may set the conditions upon which probation may be revoked.
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Join FLexlaw to unlock all legal intelligence“only the court may set the conditions upon which probation may be revoked, and probation may be revoked only for the violation of a condition set by the court”
Statement of the core holding establishing that courts have exclusive jurisdiction over probation revocation conditions
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Join FLexlaw to unlock all legal intelligenceOn April 15, 1974, Barber pleaded guilty to possession of a controlled substance and was placed on probation for five years. The probation conditions …
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PEARSON, Judge.
On April 15, 1974,, this appellant pled guilty to the possession of a controlled substance and was placed on probation for a period of five years. One of the conditions of his probation was as follows:
“(b) You shall promptly and truthfully answer all inquiries directed to you by the Court and the Probation Supervisor; allow the Probation Supervisor to visit your home, employment site, or elsewhere, and carry out all instructions he gives you.”
The conditions of probation did not include a requirement that the defendant file written monthly reports. During the period of probation, the defendant’s Probation Supervisor filed an application of violation of probation setting forth as one of the grounds that the defendant had failed to file written reports as he was instructed to do by the probation officer. The trial court revoked defendant’s probation upon the sole ground that he had failed to file the monthly reports.
The State points out that it is often necessary for the Probation Supervisor to have written reports from a probationer in order to carry out his duties as supervisor. We think that this right to require reports affirmatively appears from the provisions of Section 948.02, Florida Statutes (1975). Nevertheless, it also appears that it is exclusively within the jurisdiction of the court to set the terms and conditions upon which a probationer’s probation may be revoked. See Section 948.03, Florida Statutes (1975); and Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976).
We, therefore, hold that although the Department of Offender Rehabilitation, acting through a probation officer, may require a probationer to file periodic reports, even though such a requirement is not made a condition of his probation, such probation may not be revoked solely upon the ground that the probationer has failed to file the reports, unless the requirement is made a condition of his probation by the court. In other words, only the court may set the conditions upon which probation may be revoked, and probation may be revoked only for the violation of a condition set by the court.
The order revoking appellant’s probation is reversed with directions to the court to remand appellant to the Department of Offender Rehabilitation for the continuation of his probation under the conditions as originally set out or for the assumption of additional conditions that the court may find proper. See Section 948.03(2), Florida Statutes (1975).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)…uch support. Finally, the requirement that Page make daily telephone contact with the probation supervisor was imposed by the supervisor and not by the court. We hold that probation may be revoked only for court-imposed conditions. Barber v. State, 344 So. 2d 913 (Fla. 3d DCA 1977). In summary, we find that the revocation of probation could properly be based on the failure to file timely monthly reports, but could not properly be based on the other two grounds. We do not know if the trial court would revoke…
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Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978)…pervision. It is firmly settled, however, that a probationer may not be violated for breach of a requirement imposed, as was this one, by his probation officer, rather than by the court, which has the sole lawful authority to do so. Barber v. State, 344 So. 2d 913 (Fla. 3rd DCA 1977); Page v. State, supra. The order of revocation and the judgment and sentence are therefore reversed and the cause remanded with directions to discharge the defendant. Reversed and Remanded. LETTS and BERANEK, JJ., concur.…
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Eladio Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988)…2), and such condition being therefore imposed by the probation officer only, the violation of it cannot serve as a basis for the revocation of probation. Hutchinson v. State, 428 So. 2d 739; Holterhaus v. State, 417 So. 2d 291; see Barber v. State, 344 So. 2d 913 (Fla. 3d DCA 1977). In all other respects the order under review is Affirmed.…
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- Kominsky v. State, 330 So. 2d 800 (Fla. 1st DCA 1976)