DAVID V. GRADDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the probation revocation based on dismissed charges was improper, but the revocation based on violating a probation condition regarding truthful answers was supported by sufficient evidence.
[1] A probation violation finding based on dismissed charges is improper.
[2] A defendant's admission to bringing alcohol onto probation center premises constitutes a violation of probation conditions requiring compliance with center rules.
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Join FLexlaw to unlock all legal intelligenceAppellant's probation was revoked for violating conditions (5) and (8). Condition (5) related to not violating any law, and condition (8) related to t…
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[*773] DANAHY, Chief Judge.
The trial court revoked the appellant’s probation on the grounds that he violated conditions (5)1 and (8)2 of his probation order. The appellant raises two issues: that condition (5) was not violated because the charges against him for burglary and grand theft were dismissed and that there was not sufficient evidence against him to warrant a finding that condition (8) was also violated. Regarding the violation of condition (8), the facts at the hearing on the probation violation showed that the appellant had admitted bringing alcohol onto the premises of the Tampa Probation and Restitution Center where the appellant was residing at the time — a clear violation of the rules of the PRC; the appellant then recanted his admission of wrongdoing claiming that he gave in to the staffer at the PRC merely to put an end to the lengthy questioning taking place in the middle of the night.
The state concedes that the violation of condition (5) was improperly grounded on the dismissed charges. We, therefore, reverse the order of revocation with respect to that finding. On remand, the reference to a violation of condition (5) should be deleted from the order of revocation. We have closely examined the appellant’s contentions concerning the violation of condition (8) and find his arguments to be without merit. Accordingly, we affirm the order of revocation of probation in all other respects.
The order of revocation is affirmed in part, reversed in part, and remanded with instructions.
SCHOONOVER and THREADGILL, JJ., concur. . Condition (5) read: "You will live and remain at liberty without violating any law. A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation."
. Condition (8) read: "You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer, and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you."
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Waymon M. Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001)…n constitute a probation violation even if nolle prossed by the State); but cf. Pendergrass v. State, 601 So. 2d 1250, 1250 (Fla. 2d DCA 1992) (reversing probation revocation based upon charges dismissed due to suppressed evidence); Graddy v. State, 517 So. 2d 772, 773 (Fla. 2d DCA 1988) (reversing probation revocation where State conceded error in probation violation based upon dismissed charges). Nonetheless, we reverse the trial court’s order on this issue because the portions of the record attached to th…
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State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000)…ill have sufficient evidence to meet its lesser burden. Moreover, the state attorney could still refile the criminal charges against appellee. The trial court relied on Pendergrass v. State, 601 So. 2d 1250 (Fla. 2d DCA 1992), and Graddy v. State, 517 So. 2d 772 (Fla. 2d DCA 1988). However, the court in Graddy relied upon the state’s concession of error in reaching its decision on this issue. See id. at 773. We conclude that Graddy is distinguishable because of the concession of error. Pendergrass relied up…
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Pendergrass v. State, 601 So. 2d 1250 (Fla. 2d DCA 1992)…icense and carrying a concealed weapon, alleged violations of probation condition 5 requiring no violations of law. The record indicates that the trial court dismissed these charges after granting defendant’s motion to suppress. See Graddy v. State, 517 So. 2d 772 (Fla. 2d DCA 1988) (revocation improper if based on commission of new charges that are subsequently dismissed). See also Cross v. State, 469 So. 2d 226 (Fla. 2d DCA 1985), approved, 487 So. 2d 1056 (Fla.), cert. dismissed, 479 U.S. 805, 107 S.Ct. 24…