MARCINE HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marcine Howard appeals the revocation of his probation, challenging the trial court's finding that he violated probation by committing a robbery by sudden snatch on July 10, 2002. The appellate court reversed and remanded because the only affidavit of violation in the record alleged a different offense (aggravated battery and armed robbery on August 13, 2002), and revoking probation for violations not alleged in the affidavit constitutes a due process violation.
The court reversed and remanded to the trial court to conduct further proceedings to locate an amended affidavit of violation of probation that may have been filed before the hearing. The court held that revoking probation for violations not alleged in the affidavit of violation constitutes a due process violation and fundamental error.
[1] A due process violation and fundamental error occurs when probation is revoked for violations not alleged in the affidavit of violation of probation.
[2] A violation of probation proceeding is initiated when an arrest warrant issues based upon an affidavit alleging a violation of probation.
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Join FLexlaw to unlock all legal intelligence“It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation.”
Establishes the core legal principle that probation revocation must be based on violations alleged in the affidavit.
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Join FLexlaw to unlock all legal intelligenceHoward's probation was revoked after a hearing where the trial court found he violated probation by committing a robbery by sudden snatch on July 10, …
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GROSS, J.
Marcine Howard appeals an order revoking his probation. We reverse and remand to the circuit court to conduct further proceedings directed at locating an amended affidavit of violation of probation referred to in testimony but not included in the record on appeal.
After a hearing, the trial court found that Howard had violated his probation by committing a robbery by sudden snatch on July 10, 2002. The only affidavit of violation of probation that appears in the record references an aggravated battery and armed robbery that occurred on August 13, 2002.
It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation. See Baker v. State, 760 So. 2d 1115, 1116 (Fla. 4th DCA 2000) (holding that trial court erred in revoking community control where “affidavit and warrant appearing in the record do not charge the substantive violation” for which defendant’s probation was revoked); Nagel v. State, 758 So. 2d 1206, 1208 (Fla. 4th DCA 2000). A violation of probation proceeding is “set in motion” when an arrest warrant issues based upon an affidavit alleging a violation of probation. State v. Boyd, 717 So. 2d 524, 526 (Fla.1998).1 The filing of the affidavit and issuance of the warrant toll the probationary period “until the court enters a ruling on the violation.” § 948.06(1), Fla. Stat. (2002). A violation of probation warrant issues “at the time it is signed by the magistrate.” § 901.02(1), Fla. Stat. (2002).
The transcript of the April 25, 2003 hearing reveals a possibility that an amended affidavit of violation of probation was filed before the hearing. On cross-examination by Howard’s attorney, the probation officer referred to the robbery by sudden snatching as the “amended charge.” A later question by the defense attorney mentioned an “amended warrant.” The defense did not express surprise at or otherwise object to the use of the July 10 incident, and not the August 13 robbery, as the basis for the revocation. As we did in Baker, where there was “the possible existence of an amended affidavit charging the substantive violation,” we remand to the trial court with instructions to conduct further proceedings to determine the existence of the amended affidavit. 760 So. 2d at 1117.
WARNER and SHAHOOD, JJ., concur. . State v. Boyd, 717 So. 2d 524 (Fla.1998), effectively overruled this court's statement in McGrawv. State, 700 So. 2d 183 (Fla. 4th DCA 1997), that a violation of probation proceeding commences with "either the filing of the affidavit of violation of probation with the clerk or the trial court's issuance of the arrest warrant.” Id. at 184.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Toland Jerome Bonner v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014)…ecifically charged with committing that crime in the violation of probation affidavit. Courts have held that it is fundamental error to revoke probation based on an allegation not alleged in the violation of probation affidavit. See Howard v. State, 883 So. 2d 879, 880 (Fla. 4th DCA 2004) (“It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation.”); Smith v. State, 738 So. 2d 433 (Fla. 1st DCA 1999) (“Revocation of probation…
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Rogers v. State, 972 So. 2d 1017 (Fla. 4th DCA 2008)…m the trial transcript of the existence of the missing affidavit, this court has remanded with instructions for the trial court to conduct further proceedings to determine the existence of the missing affidavit. Id. at 1117; Howard v. [*1021] State, 883 So. 2d 879, 880 (Fla. 4th DCA 2004). The transcript in this case demonstrates that there was testimony given regarding appellant’s offense of burglary of a dwelling. The owner of the burglarized home testified. The investigating officer testified that he foun…
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Johnson v. State, 899 So. 2d 436 (Fla. 4th DCA 2005)…court. Although Johnson failed to contemporaneously raise this issue during the revocation hearing, revoking probation based on an allegation not charged in the affidavit of violation of probation constitutes fundamental error. See Howard v. State, 883 So. 2d 879 (Fla. 4th DCA 2004); Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003). The State acknowledges that it is a due process violation to revoke probation for violations not alleged in the affidavit of violation of probation, but attempts to distin…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shiver v. State, 717 So. 2d 524 (Fla. 1998)
- McGRAW v. State, 700 So. 2d 183 (Fla. 4th DCA 1997)
- Connor v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)
- Baker v. State, 760 So. 2d 1115 (Fla. 4th DCA 2000)
- Nagel v. State, 758 So. 2d 1206 (Fla. 4th DCA 2000)