ARTHUR LEE MCKEEVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur McKeever appealed the revocation of his probation based on three alleged violations. The court reversed because one violation (shoplifting) was neither admitted nor proved, and the other two were only technical violations, leaving uncertainty about whether revocation would have occurred on those grounds alone.
The court reversed the probation revocation because the shoplifting violation was neither admitted nor proved and therefore could not legally support revocation. The court was uncertain whether the trial court would have revoked probation based solely on the technical violations (missed reports and payments), requiring remand for further proceedings.
[1] A probation revocation cannot be predicated upon a violation that was neither admitted nor proven.
[2] A trial court cannot properly find a probation violation based on a charge that was denied and for which no evidence was presented.
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Join FLexlaw to unlock all legal intelligence“Inasmuch as the allegation charging appellant with a shoplifting-violation of condition 4 was neither admitted nor proved, the trial court could not properly find that appellant violated that condition or base the revocation of appellant's probation upon such a finding.”
Establishes that unproven probation violation allegations cannot support revocation
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Join FLexlaw to unlock all legal intelligenceMcKeever was on probation for grand larceny and two counts of breaking and entering with intent to commit petit larceny. He was charged with three pro…
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OTT, Judge.
Arthur McKeever appeals the revocation of his probation, which was predicated upon three charged violations. Because one of the charged violations was not established and the other two were technical violations, we reverse.
Appellant was placed on probation for three separate offenses, grand larceny and two counts of breaking and entering with intent to commit petit larceny. During the probationary period, affidavits and warrants were filed charging him with.having violated his probation by (1) failing to file three of his required monthly reports, in violation of condition 2; (2) shoplifting, in violation of condition 4; and (3) failing to make four of the required monthly payments for the cost of his supervision, in violation of condition 10.
At appellant’s probation revocation hearing, appellant admitted allegations (1) and (3) (the reporting and monetary violations— conditions 2 and 10), but denied allegation (2) (the shoplifting violation of condition 4). No evidence was offered to establish that appellant violated condition 4.
At the conclusion of the revocation hearing the trial court sentenced appellant to five years imprisonment on each of the underlying offenses, two of the sentences to run concurrently and the third to run consecutive to the first two. The trial court did so without expressly stating which conditions it found him to have violated.
The probation revocation orders which were subsequently entered by the trial court recite that appellant violated conditions 2, 4, and 10 of his probation.
Inasmuch as the allegation charging appellant with a shoplifting-violation of condition 4 was neither admitted nor proved, the trial court could not properly find that appellant violated that condition or base the revocation of appellant’s probation upon such a finding. See Bernhardt v. State, 288 So. 2d 490 (Fla.1974). While it is undisputed that appellant violated the terms of his probation by failing to file monthly reports and failing to make monthly payments, we are uncertain whether the trial court would have revoked probation and imposed the sentence it did solely on those grounds. Accordingly, the order of revocation is reversed and the cause is remanded for further proceedings. See Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976).
GRIMES, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Albritton v. State, 476 So. 2d 158 (Fla. 1985)…Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981); Clemons v. State, 388 So. 2d 639, 640 (Fla. 2d DCA 1980); Peterson v. State, 384 So. 2d 965, 966 (Fla. 1st DCA 1980); Page v. State, 363 So. 2d 621, 622 (Fla. 1st DCA 1978); McKeever v. State, 359 So. 2d 905, 906 (Fla. 2d DCA 1978). Respondent urges the contrary and would have a reviewing court affirm a departure sentence where a valid reason exists unless the record clearly indicates that the trial judge would have altered his decision in the absence o…
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Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)…ot remand for reconsideration of the revocation order by the trial judge. We have done that when a substantial ground for revocation was reversed leaving only proof of the violation of a technical ground to support the revocation. McKeever v. State, 359 So. 2d 905 (Fla. 2d DCA 1978); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976). But here the appellant’s revocation is supported by ample evidence, including his own admission, that he left the county for over six months and also failed to file his monthly r…
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…urglary. We therefore think it appropriate to remand the cause so that the lower court may now make those determinations. Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976); see McKeever v. State, 359 So. 2d 905 (Fla. 2d DCA 1978); Jones v. State, 348 So. 2d 942 (Fla. 2d DCA 1977); compare Scherer v. State, 366 So. 2d 840 (Fla. 2d DCA 1979) (unsupported probation violation not substantial in relation to other charges; remand not required); Sampson v. State,…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gideon Bernhardt v. State, 288 So. 2d 490 (Fla. 1974)
- Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976)