309 So. 2d 252 | Fla. Dist. Ct. App. | 1975
Dissenting Opinion
(dissenting):
Appellant was arrested on August 9 1973, upon a warrant issued by a judicial officer upon probable cause, supported by affidavit. This alone satisfied minimal constitutional due process requirements for a preliminary hearing. Singletary v. State, Fla.App.1974, 290 So.2d 116.
On the following day appellant appeared in court with appointed counsel, and was arraigned. It is significant to note that from that date to October 11, 1973, when hearing on the probation violation commenced, appellant never requested any preliminary hearing. Thus, assuming the affidavit-judicial warrant procedure would not suffice for preliminary hearing requirements, appellant waived a preliminary hearing by her failure to request one. Cf. Lester v. State, Fla.App.1974, 290 So.2d 108.
Finally, appellant does not suggest nor does the record support any possible prejudice occurring to her as a consequence of not being afforded a preliminary hearing.
Lead Opinion
Defendant was arrested and charged with violating the conditions of her probation, this event taking place on August 9, 1973. An order of revocation was entered on October 25, 1973, and she was thereafter duly sentenced. During the intervening period of seventy-eight days, while she was incarcerated, the defendant was not accorded a preliminary hearing as concerns the charge. This constitutes a denial of due process with the consequence being that appellant’s probation must be reinstated. Oaks v. Wainwright, 305 So.2d 1 (Fla.1974); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972).
Reversed and remanded for proceedings consistent herewith.
Reversed and remanded.
