VALERIE DENISE CURRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot modify probation based on alleged violations occurring after the probation period has expired.
[1] A trial court cannot revoke or modify probation based on alleged violations that occurred after the probation period has expired.
[2] An order modifying probation that is based on evidence of violations occurring after the expiration of the probation period is illegally entered.
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Join FLexlaw to unlock all legal intelligenceThe appellant's probation expired, but she was subsequently charged with violations, including a new crime. The trial court modified her probation, ex…
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PER CURIAM.
The appellant, Valerie Denise Curry, was placed on probation for eighteen months. After the expiration of her probation, an amended affidavit charged her with failing to file a monthly report, moving without securing the permission of her probation officer, and with the commission of a new crime. This new crime was alleged to have occurred after the expiration of her probation. Following the hearing on the petition to revoke probation, the trial court modified the probation as follows:
“IT, THEREFORE, IS ORDERED AND ADJUDGED that the probation of the aforesaid defendant ought to be modified, and it is hereby modified in accordance with Section 948.03, Florida Statutes, in the following manner: That the aforesaid’s probation be extended so that the normal termination date be four from the original date of probation; that the aforesaid be sentenced to eighteen (18) months in State Prison as a special condition of probation; that the aforesaid pay the medical expenses of the victim, Elijah McCray, 315 S.W. 6th Terrace, Homestead, Florida.”
The person to whom the probationer was required to pay medical expenses was the alleged victim of the criminal offense charged, which occurred after the expiration of her period of probation. It should be noted that nothing in this opinion affects the right of the State to bring her to trial on this charge.
It is apparent that the order modifying probation was illegally entered, based upon evidence of alleged violations after the expiration of the probation. See the rule in O’Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972). See also Section 948.06(1), Florida Statutes (1977).
In view of the fact that appellant has now served a portion of the sentence that was made a condition of the order modifying probation which must now be reversed, accordingly, we reverse the order without direction for retrial and we hereby direct the discharge of the appellant. In view of the circumstances of this case, the time for petition for rehearing is limited to three days.
Reversed with directions to discharge the appellant.
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Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)…y and (b) the failure to file timely reports. As the state concedes, the burglary was not a proper basis for revocation because it was committed on May 19,1978, after Jess’s term of probation had already expired on December 12, 1977. Curry v. State, 362 So. 2d 36 (Fla. 3d DCA 1978), cert. denied, 372 So. 2d 471 (Fla.1979); Demchak v. State, 351 So. 2d 1053 (Fla. 4th DCA 1977); § 948.06(1), Fla.Stat. (1979). The allegation that the defendant had violated the condition of probation requiring the submission o…
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Idus Taylor v. State, 395 So. 2d 597 (Fla. 3d DCA 1981)…PER CURIAM. Reversed. Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980); Curry v. State, 362 So. 2d 36 (Fla. 3d DCA 1978).…
Authorities Cited
- Boy Elijah O'Steen v. State, 261 So. 2d 208 (Fla. 1st DCA 1972)