ERICK D. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the failure to properly execute an affidavit of probation violation is not fundamental error if the issue is not preserved and the violation is established by sworn testimony.
Smith's probation was revoked for committing a criminal narcotic's offense. He appealed, arguing the affidavit supporting the revocation was not prope…
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Smith appeals from an order that revoked his probation after he violated the terms of his probation by committing a criminal narcotic's offense. His principal point on appeal is that the affidavit of probation filed by his probation officer and approved by her supervisor was not executed before a person authorized to admin ister an oath attesting to the truth of the facts supporting the allegations. Under the circumstances of this case, we affirm.
The document alleging violation of probation was signed below the following statement:
Under penalties of perjury, I have read the foregoing affidavit and the facts stated in it are true.
This document was “verified,”1 but did not meet the “affidavit” requirement of section 948.06(1), Florida Statutes. Jackson v. State, 881 So. 2d 666 (Fla. 5th DCA 2004), modified by Crain v. State, 914 So. 2d 1015 (Fla. 5th DCA 2005).
However, unlike Jackson, in this case the error was not preserved. The evidentiary proceeding unfolded without any objection to the charging document and Smith’s violation of probation was clearly established by sworn testimony. We have held that this is not fundamental error. Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005). See also Ruiz v. State, 908 So. 2d 508 (Fla. 5th DCA 2005).
AFFIRMED.
SAWAYA and TORPY, JJ„ concur. . § 92.525, Fla. Stat. (2004).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chadwick v. State, 118 So. 3d 827 (Fla. 2d DCA 2012)…of the pre-amendment version of section 948.06(1). “Such non-compliance, while error, is not the type of defect which has traditionally been considered fundamental, particularly in a probation revocation context.” Id. Similarly, in Smith v. State, 917 So. 2d 409, 410 (Fla. 5th DCA 2006), the problem was that the VOP affidavit, although verified, did not meet the formal requisites of section 948.06(1). No objection to the charging document was interposed at the evidentiary hearing, and the appellate court re…
Authorities Cited
- Efrain T. Jamie v. State, 914 So. 2d 1015 (Fla. 4th DCA 2005)
- Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005)
- Jackson v. State, 881 So. 2d 666 (Fla. 5th DCA 2004)
- Ruiz v. State, 908 So. 2d 508 (Fla. 5th DCA 2005)