SELLIE RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that revoking probation for an offense not charged in the affidavit violates due process and constitutes fundamental error.
The defendant's probation was revoked in part for failure to make monthly reports, an offense not included in the charging affidavit. The appellate co…
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PADOVANO, Judge.
Sellie Richardson, the defendant, appeals an order revoking his probation. We must reverse the order because the oral pronouncement of the trial court indicates that the defendant’s probation was revoked in part for failure to make monthly reports, an offense not charged in the affidavit.
The revocation of a defendant’s probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Wyns v. State, 679 So. 2d 882 (Fla. 5th DCA 1996); Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). In the present case, the state contends that the issue was not properly preserved for review under section 924.051(3), Florida Statutes, but we must reject this argument. A contemporaneous objection was not required because a deprivation of the right to due process of law is fundamental error. Wood v. State, 544 So. 2d 1004 (Fla. 1989). See, e.g., Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992) (failure to allege the basic facts concerning the alleged probation violation is fundamental error).
We are unable to determine whether the trial court would have revoked the defendant’s probation and imposed the same sentence on the basis of other violations that were alleged and proven at the hearing. Therefore, we must remand this case to the trial court for further proceedings. Mordica v. State, 618 So. 2d 301 (Fla. 1st DCA 1993); Gammon v. State, 451 So. 2d 1042 (Fla. 1st DCA 1984).
Reversed and remanded.'
MINER and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (23 total)
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Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998)…ould be fundamental. We recognize that the scope of our opinion will be affected by the definition given to the term “sentencing errors.” Some errors which occur at sentencing might be categorized as due process violations, see Richardson v. State, 694 So. 2d 147 (Fla. 1st DCA 1997), a violation of the plea agreement, see Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997),7 or even clerical error. See Johnson v. State, 701 So. 2d 382 (Fla. 1st DCA 1997); Massey v. State, 698 So. 2d 607 (Fla. 5th DCA 1997). A…
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Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)…. State, 823 So. 2d 849, 852 (Fla. 1st DCA 2002). “The revocation of a defendant's probation based on a violation not alleged in the charging document is a deprivation of the right to due process” constituting fundamental error. Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); see Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999); Dulaney v. State, 735 So. 2d 505 (Fla. 1st DCA 1999). By analogy, revoking probation based partly on a purported violation that was not proved or admitted constit…1 / 2
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RAY v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003)…t violation altogether.” N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA 2002); see Joseph v. State, 615 So. 2d 833 (Fla. 4th DCA 1993) (holding revocation of probation may not be based upon violation not charged in affidavit); Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997) (holding revocation of defendant’s probation based on violation not alleged in charging document is a deprivation of right to due process of law). Such error by the trial court constitutes fundamental error. Dulaney v. State…
Previewing 3 of 23 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- Mordica v. State, 618 So. 2d 301 (Fla. 1st DCA 1993)
- Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986)
- Brady Johnson v. State, 679 So. 2d 882 (Fla. 5th DCA 1996)
- Shabsels v. Moskowitz, 451 So. 2d 1042 (Fla. 3d DCA 1984)
- Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992)