ALPH L. FUTCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed probation revocation where the underlying offense was alleged in a timely-filed affidavit even though an amended affidavit was filed after probation expired, and remanded to correct the written order to reflect the proper basis for revocation.
A trial court has jurisdiction to revoke probation based on an offense alleged in an affidavit filed before probation expired, even if an amended affidavit containing the same offense is filed after expiration.
[1] A trial court retains jurisdiction to revoke probation based on an offense alleged in an affidavit filed before probation expiration, notwithstanding that an amended affi…
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Join FLexlaw to unlock all legal intelligenceFutch was convicted of criminal mischief and his probation was revoked based on allegations in an amended affidavit of violation of probation filed af…
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PER CURIAM.
Appellant seeks review of his conviction and sentence for criminal mischief and the trial court’s order revoking his probation, contending that the court lacked jurisdiction to revoke his probation based on the allegations contained in an amended affidavit of violation of probation that was filed after his probation had terminated.
The state concedes that the amended affidavit of violation of probation was filed after appellant’s probation had expired, but correctly contends that the offense which was the basis for the revocation (trespass) was alleged not only in the amended affidavit of violation of probation, but also in a prior affidavit of violation of probation that was filed before appellant’s probation ended. Accordingly, the trial court did not lack jurisdiction to revoke appellant’s probation. See Clark v. State, 402 So. 2d 43 (Fla. 4th DCA1981). See also Jess v. State, 384 So. 2d 328 (Fla. 3d DCA1980).
We therefore affirm the judgment, sentence and order revoking probation. However, the written order revoking probation should be corrected to reflect that revocation was based on the January 13, 1992, affidavit of violation of probation, and on the offense of trespass, as the transcript of the revocation hearing indicates that the trial court’s sole reason for revoking probation was appellant’s commission of the trespass. We remand for that purpose.
GLICKSTEIN, C.J., and GUNTHER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sepulveda v. State, 909 So. 2d 568 (Fla. 2d DCA 2005)…idavit filed after the expiration of the probationary period have also been alleged in an earlier affidavit timely filed before [*571] the expiration of the probationary period. Davis v. State, 623 So. 2d 579, 580 (Fla. 3d DCA 1993); Futch v. State, 605 So. 2d 954, 955 (Fla. 4th DCA 1992); McPherson v. State, 530 So. 2d 1095, 1098 (Fla. 1st DCA 1988); Clark v. State, 402 So. 2d 43, 44-45 (Fla. 4th DCA 1981). However, a timely affidavit of violation cannot be amended after the expiration of the probationary pe…
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Owens v. State, 141 So. 3d 259 (Fla. 3d DCA 2014)…fense of burglary. See Thompson v. State, 965 So. 2d 1250, 1251 (Fla. 1st DCA 2007) (“[W]hen a conflict exists between an oral revocation pronouncement and the written order revoking probation, the oral pronouncement will control.”); Futch v. State, 605 So. 2d 954, 955 (Fla. 4th DCA 1992) (affirming revocation of probation but remanding for entry of written order to accurately reflect the oral pronouncement). Order and sentence affirmed; case remanded with instructions consistent herein.…
Authorities Cited
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- Bennie Jess, Jr. v. State, 384 So. 2d 328 (Fla. 3d DCA 1980)