TOLAND JEROME BONNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that it is fundamental error to revoke probation based on violations not alleged in the affidavit of violation of probation.
[1] Revocation of probation based on an alleged violation not specified in the affidavit of violation of probation constitutes fundamental error.
[2] A trial court commits fundamental error by revoking probation based on grounds not alleged in the affidavit of violation of probation.
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Join FLexlaw to unlock all legal intelligenceThe appellant was found to have violated probation based on an affidavit alleging leaving the scene of an accident without damage. However, the eviden…
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The appellant appeals the judgment and sentence imposed after the trial court found that he violated probation. For the reasons discussed below, we reverse.
The affidavit of violation of probation alleged that appellant violated probation by committing the criminal offense of “LSOA without giving info more than $50 damage.” 1 However, there was no evidence of any damage to the vehicle or property introduced at the violation hearing. Instead, all the evidence introduced by the state suggested the appellant committed the crime of leaving the scene of an accident with personal injury, a violation of section 316.027, Florida Statutes (2012). The appellant was not specifically 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 on grounds never alleged in writing violates due process and is fundamental error.”); Wyns v. State, 679 So.2d 882 (Fla. 5th DCA 1996) (“fundamental due process requires revocation to be based only on those violations alleged”). Accordingly, we reverse the trial court’s order and remand this matter to the trial court with orders to dismiss the violation of probation charges.2
REVERSED and REMANDED with directions.
BENTON, WETHERELL, and MARSTILLER, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCloud v. State, 249 So. 3d 739 (Fla. 1st DCA 2018)…entenced him to 15 years’ imprisonment. McCloud appeals the revocation order arguing that the trial court erred by revoking probation on the basis of violations not alleged in the probation affidavit. Citing our recent decision in Bonner v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014), McCloud argues that because the offense of attempted manslaughter by act was not one of the new law violations listed in the violation of probation affidavit, the trial court committed fundamental error by revoking probation. We…
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Cohen v. State, 171 So. 3d 179 (Fla. 3d DCA 2015)…tatutes, by having made the series of ten repeated phone calls following the single obscene phone call. Revocation of probation based on an uncharged violation deprives the defendant of due process and constitutes fundamental error. Bonner v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014); McRae v. State, 88 So. 3d 384 (Fla. 2d DCA 2012); Ray v. State, 855 So. 2d 1260 (Fla. 4th DCA 2003). When probation has been revoked based on charged and uncharged conduct, the revocation order must be reversed where it is uncle…
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Jabare Edwards v. State, 243 So. 3d 520 (Fla. 1st DCA 2018)…is court has held that it is a violation of due process and fundamental error to revoke a defendant's probation based on grounds not alleged in the charging affidavit. See Osteen v. State , 147 So. 3d 678, 679 (Fla. 1st DCA 2014) ; Bonner v. State , 138 So. 3d 1101, 1102 (Fla. 1st DCA 2014) ; Perkins v. State , 842 So. 2d 275, 277 (Fla. 1st DCA 2003) ; N.L. v. State , 825 So. 2d 509, 510 (Fla. 1st DCA 2002). However, in this case, the error does not require reversal because the record clearly establishes that…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 738 So. 2d 433 (Fla. 1st DCA 1999)
- Marcine Howard v. State, 883 So. 2d 879 (Fla. 4th DCA 2004)
- Brady Johnson v. State, 679 So. 2d 882 (Fla. 5th DCA 1996)