CLEVELAND PARRISH, A/K/A CLEVELAND PARRISH, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Probation revocation affirmed on grounds of failure to file reports and operate without license, but vacated as to unlawful tag and supervision costs where state failed to prove knowing possession and indigency defense.
Probation revocation is sustainable where defendant failed to file monthly reports and operated a motor vehicle without a valid driver's license, but revocation cannot rest on unlawful tag possession without proof of knowledge or on supervision costs without rebutting indigency.
[1] Probation revocation for failure to pay supervision costs is unwarranted where the defendant establishes indigency and the state fails to rebut such testimony.
[2] Probation revocation based on possession of an unlawful automobile tag requires proof that the defendant knowingly possessed the tag in violation of the statute.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with violating probation by failing to file monthly reports, failing to pay supervision costs, operating a motor vehicle without…
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PER CURIAM.
The defendant appeals from an order revoking his probation and sentencing him to five years in prison. The amended affidavit of violation of probation charged him with: (1) failure to file monthly probation reports; (2) failure to pay probation supervision costs; and (3) failure to live and remain at liberty without violating any law in that he: (a) operated a motor vehicle without a valid driver’s license; and (b) for the “attachment of unlawful automobile tag.’’ The defendant’s own testimony demonstrates he failed to file probation reports and that he operated a motor vehicle without a driver’s license.
Nonetheless, the state failed to demonstrate that the defendant knowingly possessed the unlawful automobile license plate contrary to Section 320.261, Florida Statutes (1979). The revocation of his probation for failure to pay probation supervision costs was unwarranted because the state did not rebut the defendant’s testimony that he was an indigent. Coxon v. State, 365 So. 2d 1067 (Fla.2d DCA 1979); Jones v. State, 360 So. 2d 1158 (Fla.1st DCA 1978).
Consequently, we vacate that portion of the order premising revocation of the defendant’s probation on the latter two grounds but affirm the order revoking his probation because it is otherwise sustainable on a legally sufficient basis. Coxon v. State, supra; Page v. State, 363 So. 2d 621 (Fla.1st DCA 1978); Franklin v. State, 226 So. 2d 461 (Fla.2d DCA 1969).
As modified, the order appealed from is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelson v. State, 453 So. 2d 473 (Fla. 2d DCA 1984)…probation in this regard, it would have been necessary for the state to prove knowing possession. The affidavit, which was admitted into evidence, and unrebutted, established that the appellant had no knowledge concerning this tag. Parrish v. State, 402 So. 2d 530 (Fla.3d DCA 1981). Accordingly, this cause is reversed and remanded to the trial court for reinstatement of the original orders placing appellant on probation. BOARDMAN, A.C.J., and SCHEB, J., concur.…
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Rosario v. State, 406 So. 2d 106 (Fla. 3d DCA 1981)…o formal order of revocation is in the record on appeal,2 and it is obvious that the defendant’s commission of the substantive crime alone was sufficient to support and in fact was responsible for the conclusions reached below. See Parrish v. State, 402 So. 2d 530 (Fla.3d DCA 1981); Scherer v. State, 366 So. 2d 840 (Fla.2d DCA 1979); compare, Aaron v. State, 400 So. 2d 1033 (Fla.3d DCA 1981); Jess v. State, 384 So. 2d 328 (Fla.3d DCA 1980). Affirmed. . Rosario’s prints were found on liquor bottles taken…1 / 2
Authorities Cited
- Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979)
- Frank v. State, 360 So. 2d 1158 (Fla. 3d DCA 1978)
- Page v. State, 363 So. 2d 621 (Fla. 1st DCA 1978)
- Franklin v. State, 226 So. 2d 461 (Fla. 2d DCA 1969)