JOHN C. FRANKLIN, APPELLANT.
v.
STATE OF FLORIDA, APPELLEE
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Franklin appealed the revocation of his probation based on alleged violations of two conditions: carrying a weapon without consent and violating the law by possessing stolen property. The court reversed the revocation, finding insufficient evidence to support the probation violation charges.
The court reversed the probation revocation, holding that the proof presented at the hearing was insufficient to sustain the revocation because Franklin's denials and explanations were uncontradicted and his testimony about the disarming incident was confirmed by the State's own witnesses.
[1] A probationer's momentary possession of a weapon, taken from an assailant, does not necessarily constitute a violation of a condition prohibiting the carrying or ownershi…
[2] A probation violation based on possession of a stolen firearm requires proof that the probationer knew or should have known the firearm was stolen.
Previewing 2 of 4 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“Under these circumstances we find the proof presented at the hearing was not sufficient to sustain the revocation of probation.”
Establishes the court's holding that insufficient evidence supported the probation revocation.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFranklin disarmed an assailant with a gun at a bar where he was working and momentarily held the weapon. Police later searched his home pursuant to a …
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ANSTEAD, Judge:
This is an appeal from an order revoking probation. We reverse.
The defendant, John C. Franklin, was found by the trial court to have violated two conditions of his probation:
(f) Neither carry nor own any weapons without first securing the consent of the Probation Supervisor. (h) Live and remain at liberty without violating any law.
Condition (f) was alleged to have been violated when Franklin and another individual disarmed an assailant armed with a gun at a bar where Franklin was doing carpentry work. He was shown to have had the gun in his hand momentarily after the weapon was taken from the assailant. Subsequently, the police, acting on a report that Franklin was seen with the gun, went to Franklin’s home, where Franklin denied he had the gun and refused the police permission to search his home. The police then secured a search warrant and upon searching Franklin’s home found another gun in a closet, not the one involved with the assailant; and this other gun turned out to have been stolen. Franklin was then arrested for possession of stolen property resulting in the charge as to condition (h).
Franklin denied any knowledge that the gun was stolen and testified that a relative placed-the gun in his home for safekeeping. He also called a neighbor as a witness to establish the existence of his relative. Franklin’s denial of knowledge about the gun being stolen and his explanation of the presence of the gun were not contradicted, and his testimony about disarming the assailant was actually confirmed by the State’s witnesses. Under these circumstances we find the proof presented at the hearing was not sufficient to sustain the revocation of probation. Larocco v. State, 276 So. 2d 538 (Fla.4th DCA 1973).
Accordingly, the order of revocation of probation and the judgment and sentence are reversed with directions that the order of probation of November 3, 1971 be reinstated.
DOWNEY, J., concurs.
DAUKSCH, J., concurs specially, with opinion.
DAUKSCH, Judge
(concurring specially).
I am compelled to point out that the condition (f) proscribed owning or carrying but not possessing a weapon and the undisputed evidence was that the Defendant’s cousin had left the gun with the Defendant for safekeeping. Further I note the Defendant complied with all requirements of the probation order for 5V2 years before this alleged violation and the Parole and Probation Commission saw fit to have the Defendant on a 3 month written report status as their limited supervision.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Danek v. State, 429 So. 2d 1369 (Fla. 3d DCA 1983)…ce linking Danek to a grand theft of the vehicle in question. We accordingly reverse the finding of violation of probation. See Coley v. State, 393 So. 2d 60 (Fla. 3d DCA 1981); Hodges v. State, 370 So. 2d 78 (Fla. 2d DCA 1979); Franklin v. State, 345 So. 2d 1082 (Fla. 4th DCA 1977). Our reversal is without prejudice to the state to file an affidavit of violation of probation on charges which it asserts exist but are unrelated to this appeal. Reversed and remanded with directions to reinstate the defenda…
Authorities Cited
- M. C. P. v. State, 276 So. 2d 538 (Fla. 3d DCA 1973)
- Larocco v. State, 276 So. 2d 538 (Fla. 4th DCA 1973)