60 So. 3d 551
Fla. Dist. Ct. App.2011Background
- Appellant pleaded guilty to lewd battery involving a person 12 or older but under 16, and was sentenced to 42 months in prison followed by three years of sex offender probation.
- The probation order contained 27 conditions, including special condition 12 prohibiting unsupervised contact with any child under 18 absent an accompanying adult advised of the crimes.
- In December 2009, a probation officer filed an affidavit alleging violations of conditions 8, 9, 12, and 18.
- The affidavit regarding condition 12 alleged Appellant had contact with a one-year-old child in the presence of a woman in Appellant’s yard; testimony identified the child’s mother and Appellant’s girlfriend but did not expressly state unsupervised contact.
- At the violation hearing, the court orally found violations of special condition 12 only for unsupervised contact with the girlfriend’s children; a written order later purported to revoke for conditions 8, 9, 12, and 18, contradicting the oral pronouncement.
- The court ultimately revoked probation and sentenced Appellant to 15 years, but the court vacated on review due to the discrepancy and the lack of charge for unsupervised contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the written revocation conflicted with the oral pronouncement | Appellant | State | Oral pronouncement controls; written order inconsistent is error. |
| Whether probation can be revoked for conduct not charged in the affidavit | Appellant | State | No; revocation cannot be based on uncharged conduct. |
| Whether the evidence supported a violation of special condition 12 | Appellant | State | Evidence failed to prove unsupervised contact as required by the condition and the affidavit. |
| Whether due process was violated by revoking probation for uncharged conduct | Appellant | State | Fundamental error; due process violated. |
Key Cases Cited
- Thompson v. State, 965 So.2d 1250 (Fla. 1st DCA 2007) (oral pronouncement governs when inconsistent with written order)
- Perkins v. State, 842 So.2d 275 (Fla. 1st DCA 2003) (cannot revoke for conduct not charged in affidavit)
- Joslin v. State, 984 So.2d 1269 (Fla. 2d DCA 2008) (conduct not alleged in affidavit cannot support revocation)
- Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003) (due process concerns in probation revocation for uncharged conduct)
- Smith v. State, 738 So.2d 433 (Fla. 1st DCA 1999) (due process concerns in probation revocation)
- Richardson v. State, 694 So.2d 147 (Fla. 1st DCA 1997) (fundamental error in probation revocation for uncharged conduct)
- Lindsay v. State, 54 So.3d 638 (Fla. 1st DCA 2011) (trial court has broad discretion; must prove willful and substantial violation)