JABARE EDWARDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
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Edwards appeals his conviction for arson and the revocation of his probation. The court affirmed his arson conviction and probation revocation but remanded for entry of a corrected revocation order because the trial court relied on charges not alleged in the charging affidavit, though the record established sufficient grounds based on the properly charged arson violation alone.
The court affirmed the probation revocation because the record clearly established the trial court would have revoked probation based solely on the properly charged arson violation, even though relying on uncharged grounds would ordinarily violate due process. The court remanded for entry of a corrected revocation order reflecting that revocation was based only on the arson violation.
[1] A defendant's probation may not be revoked based on grounds not alleged in the charging affidavit.
[2] A violation of due process occurs when a defendant's probation is revoked based on grounds not alleged in the charging affidavit.
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Join FLexlaw to unlock all legal intelligence“this 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”
Establishes the fundamental legal principle that probation revocation must be based on charges alleged in the affidavit
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Join FLexlaw to unlock all legal intelligenceEdwards was charged with arson for setting fire to his ex-girlfriend's apartment and with violating his probation through several new law violations. …
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In case number 1D17-1903, Appellant seeks review of his criminal judgment and sentence for arson, and in case number 1D17-1904, he seeks review of the order revoking his probation based on several new law violations, including arson. We previously consolidated the cases for briefing and we now consolidate them for disposition.
Appellant was charged with arson for setting fire to his ex-girlfriend's apartment. He was also charged with violating his probation by committing several new law violations, including arson. A jury found Appellant guilty of arson, and the trial court found that he violated his probation. The trial court revoked Appellant's probation and sentenced him to concurrent prison terms of varying lengths for the arson and the offenses for which he was on probation.
We affirm Appellant's judgment and sentence for arson without further comment. We also summarily affirm the revocation of Appellant's probation, but for the reasons that follow, we remand for entry of a corrected revocation order.
*521The charging affidavit alleged that Appellant violated his probation by committing arson and three specific new law violations in Gadsden County: reckless driving, failure to obey law enforcement officer, and dealing in stolen property. The trial court, in its oral pronouncement, found that Appellant violated his probation by committing arson and two different new law violations in Gadsden County: felony fleeing and eluding and grand theft motor vehicle. Although Appellant admitted to having been found guilty of "a new law offense" in Gadsden County and he did not object to the introduction of the certified copy of the judgment reflecting his convictions for felony fleeing and eluding and grand theft motor vehicle, this 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 the trial court would have revoked Appellant's probation based solely on the new law violation of arson. See Bourne v. State , 869 So.2d 606, 607 (Fla. 1st DCA 2004) (affirming probation revocation that was based in part on uncharged grounds because "there are sufficient valid grounds remaining upon which the trial court could have revoked [the defendant's] probation"); see also Lee v. State , 67 So.3d 1199, 1201 (Fla. 2d DCA 2011) ("When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order.").
Accordingly, we affirm the revocation of Appellant's probation, but remand for entry of a corrected revocation order reflecting that the revocation was based solely on the new law violation of arson. This disposition renders moot Appellant's argument that the written revocation order did not comport with the trial court's oral pronouncement.
Judgment and Sentence AFFIRMED ; Probation Revocation Order AFFIRMED and REMANDED with directions.
Wolf, Roberts, and Wetherell, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Williams v. State (Fla. 1st DCA 2024)…o. See Giambrone v. State, 109 So. 3d 1279, 1280–81 (Fla. 1st DCA 2013). Even so, it is clear from the record that absent the improper ground, the court would still have revoked his probation and imposed the same sentences. See Edwards v. State, 243 So. 3d 520, 521 (Fla. 1st DCA 2018). Therefore, we affirm the revocation order and resulting sentences but remand for the correction of the order to delete the finding of a violation based on ground (4) of the amended VOP affidavit. AFFIRMED and REMANDE…
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Williams v. State (Fla. 1st DCA 2024)…do so. See Giambrone v. State, 109 So. 3d 1279, 1280–81 (Fla. 1st DCA 2013). Even so, it is clear from the record that absent the improper ground, the court would still have revoked his probation and imposed the same sentences. See Edwards v. State, 243 So. 3d 520, 521 (Fla. 1st DCA 2018). Therefore, we affirm the revocation order and resulting sentences but remand for the correction of the order to delete the finding of a violation based on ground (4) of the amended VOP affidavit. AFFIRMED and REMANDED with…
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Williams v. State (Fla. 1st DCA 2024)…do so. See Giambrone v. State, 109 So. 3d 1279, 1280–81 (Fla. 1st DCA 2013). Even so, it is clear from the record that absent the improper ground, the court would still have revoked his probation and imposed the same sentences. See Edwards v. State, 243 So. 3d 520, 521 (Fla. 1st DCA 2018). Therefore, we affirm the revocation order and resulting sentences but remand for the correction of the order to delete the finding of a violation based on ground (4) of the amended VOP affidavit. AFFIRMED and REMANDED with…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LEE v. State, 67 So. 3d 1199 (Fla. 2d DCA 2011)
- Gillis Watson v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- Perkins v. State, 842 So. 2d 275 (Fla. 1st DCA 2003)
- N.L. v. State, 825 So. 2d 509 (Fla. 1st DCA 2002)
- Bourne v. State, 869 So. 2d 606 (Fla. 1st DCA 2004)
- Toland Jerome Bonner v. State, 138 So. 3d 1101 (Fla. 1st DCA 2014)
- Osteen v. State, 147 So. 3d 678 (Fla. 1st DCA 2014)