ROLLIE GILLIAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the second order finding violations of probation was legal error as it impermissibly amended the first order, violating double jeopardy and due process. The court affirmed only two of the original violations.
The defendant was found guilty of violations of probation (VOP) under two separate orders. The first order found four violations, while a second order…
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FARMER, J.
This excessively convoluted violation of probation (VOP) appeal is exacerbated by conflicting orders as to the precise violations of probation found. Because a recitation of all issues, facts and controlling legal principles would add nothing to Florida law, we simply state our conclusions without elaboration.
The first order of violation finds guilt on four charges of VOP; the second order, entered 18 days after the first, instead finds six violations. We conclude that the entry of the second order was legal error; for we treat the first order as the essential finding of guilt and that order could not be amended to tack on additional findings of guilt without doing harm to the Double Jeopardy Clauses. Moreover two violations are based on an amended affidavit of VOP that was never filed. The elementary principles of double jeopardy and due process cannot be avoided simply by adding nunc pro tunc to an order attempting to change a prior adjudication that has become final. Law Latin is not an escape hatch from constitutional principles.
We therefore affirm only the battery and introduction of contraband offenses as the basis for the VOP. Because we are unable to discern whether the trial judge would have imposed the same sentence under these circumstances, we remand for resentencing.
GUNTHER and KLEIN, JJ., concur.