RULE 3.790. PROBATION AND COMMUNITY CONTROL

(a) Suspension of the Pronouncement and Imposition of
Sentence; Probation or Community Control. Pronouncement and
imposition of sentence of imprisonment shall not be made on a
defendant who is to be placed on probation, regardless of whether
the defendant has been adjudicated guilty. An order of the court
placing a person on probation or community control shall place the
probationer to be supervised under the authority of the Department
of Corrections or such other entity as provided by law. The court
shall specify the length of time during which the defendant is to be
supervised.

(b) Revocation of Probation or Community Control;
Judgment; Sentence.

(1) Generally. Except as otherwise provided in
subdivisions (b)(2) and (b)(3) below, when a probationer or a
community controllee is brought before a court of competent
jurisdiction charged with a violation of probation or community
control, the court shall advise the person of the charge and, if the
charge is admitted to be true, may immediately enter an order
revoking, modifying, or continuing the probation or community
control. If the violation of probation or community control is not
admitted by the probationer or community controllee, the court may
commit the person or release the person with or without bail to
await further hearing or it may dismiss the charge of violation of
probation or community control. If the charge is not admitted by
the probationer or community controllee and if it is not dismissed,
the court, as soon as practicable, shall give the probationer or
community controllee an opportunity to be fully heard in person, by
counsel, or both. After the hearing, the court may enter an order
revoking, modifying, or continuing the probation or community
control. Following a revocation of probation or community control,
the trial court shall adjudicate the defendant guilty of the crime
forming the basis of the probation or community control if no such
adjudication has been made previously. Pronouncement and
imposition of sentence then shall be made on the defendant.
(2) Lunsford Act Proceedings. When a probationer or
community controllee is arrested for violating his or her probation
or community control in a material respect and is under
supervision for any criminal offense proscribed in chapter 794,
Florida Statutes, section 800.04(4), Florida Statutes, section
800.04(5), Florida Statutes, section 800.04(6), Florida Statutes,
section 827.071, Florida Statutes, or section 847.0145, Florida
Statutes, or is a registered sexual predator or a registered sexual
offender, or is under supervision for a criminal offense for which,
but for the effective date, he or she would meet the registration
criteria of section 775.21, Florida Statutes, section 943.0435,
Florida Statutes, or section 944.607, Florida Statutes, the court
must make a finding that the probationer or community controllee
is not a danger to the public prior to release with or without bail.

(A) The hearing to determine whether the
defendant is a danger to the public shall be conducted by a court of
competent jurisdiction no sooner than 24 hours after arrest. The
time for conducting the hearing may be extended at the request of
the accused, or at the request of the state upon a showing of good
cause.

(B) At the hearing, the defendant shall have the
right to be heard in person or through counsel, to present witnesses
and evidence, and to cross-examine witnesses.

(C) In determining the danger posed by the
defendant’s release, the court may consider:

(i) the nature and circumstances of the
violation and any new offenses charged;

(ii) the defendant’s past and present
conduct, including convictions of crimes;

(iii) any record of arrests without conviction
for crimes involving violence or sexual crimes;

(iv) any other evidence of allegations of
unlawful sexual conduct or the use of violence by the defendant;
(v) the defendant’s family ties, length of
residence in the community, employment history, and mental
condition;

(vi) the defendant’s history and conduct
during the probation or community control supervision from which
the violation arises and any other previous supervisions, including
disciplinary records of previous incarcerations;

(vii) the likelihood that the defendant will
engage again in a criminal course of conduct;

(viii) the weight of the evidence against the
defendant; and

(ix) any other facts the court considers
relevant.

(3) Anti-Murder Act Proceedings. The provisions of this
subdivision shall control over any conflicting provisions in
subdivision (b)(2). When a probationer or community controllee is
arrested for violating his or her probation or community control in a
material respect and meets the criteria for a violent felony offender
of special concern, or for certain other related categories of offender,
as set forth in section 948.06(8), Florida Statutes, the defendant
shall be brought before the court that granted the probation or
community control and, except when the alleged violation is based
solely on the defendant’s failure to pay costs, fines, or restitution,
shall not be granted bail or any other form of pretrial release prior
to the resolution of the probation or community control violation
hearing.

(A) The court shall not dismiss the probation or
community control violation warrant pending against the defendant
without holding a recorded violation hearing at which both the state
and the accused are represented.

(B) If, after conducting the hearing, the court
determines that the defendant has committed a violation of
probation or community control other than a failure to pay costs,
fines, or restitution, the court shall make written findings as to
whether the defendant poses a danger to the community. In
determining the danger to the community posed by the defendant’s
release, the court shall base its findings on one or more of the
following:

(i) The nature and circumstances of the
violation and any new offenses charged;

(ii) The defendant’s present conduct,
including criminal convictions;

(iii) The defendant’s amenability to
nonincarcerative sanctions based on his or her history and conduct
during the probation or community control supervision from which
the violation hearing arises and any other previous supervisions,
including disciplinary records of previous incarcerations;

(iv) The weight of the evidence against the
defendant; and

(v) Any other facts the court considers
relevant.

(C) If the court finds that the defendant poses a
danger to the community, the court shall revoke probation or
community control and sentence the defendant up to the statutory
maximum, or longer if permitted by law.

(D) If the court finds that the defendant does not
pose a danger to the community, the court may revoke, modify, or
continue the probation or community control or may place the
probationer into community control as provided in section 948.06,
Florida Statutes.

Committee Notes

1968 Adoption. Subdivisions (a) and (b) contain the
procedural aspects of section 948.01(1), (2), and (3), Florida
Statutes. It should be noted that in (b) provision is made for no
pronouncements in addition to no imposition of sentence prior to
the granting of probation. The terminology in section 948.01(3),
Florida Statutes, is that the trial court shall “withhold the
imposition of sentence.” The selected terminology is deemed
preferable to the present statutory language since the latter is
apparently subject to misconstruction whereby a sentence may be
pronounced and merely the execution of the sentence is suspended.

The Third District Court of Appeal has indicated that the
proper procedure to be followed is that probation be granted prior to
sentencing. A sentence, therefore, is not a prerequisite of probation.
See Yates v. Buchanan, 170 So. 2d 72 (Fla. 3d DCA 1964); also see
Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958), decided by the
First District Court of Appeal to the same effect.

While a trial court initially can set a probationary period at
less than the maximum allowed by law, this period may be
extended to the maximum prior to the expiration of the initially-set
probationary period. Pickman v. State, 155 So. 2d 646 (Fla. 1st DCA
1963). This means, therefore, that any specific time set by the court
as to the probationary period is not binding if the court acts timely
in modifying it. It is clear, in view of the foregoing, that if a trial
judge pronounces a definite sentence and then purports to suspend
its execution and place the defendant on probation for the period of
time specified in the sentence, matters may become unduly
complicated.

If such procedure is considered to be nothing more than an
informal manner of suspending the imposition of sentence and thus
adhering to present statutory requirements, it should be noted that
the time specified in the “sentence” is not binding on the court with
reference to subsequent modification, if timely action follows. On
the other hand, if the action of the trial court is considered strictly,
it would be held to be void as not in conformity with statutory
requirements.

A probationary period is not a sentence, and any procedure
that tends to mix them is undesirable, even if this mixture is
accomplished by nothing more than the terminology used by the
trial court in its desire to place a person on probation. See sections
948.04 and 948.06(1), Florida Statutes, in which clear distinctions
are drawn between the period of a sentence and the period of
probation.

(c) Contains the procedural aspects of section 948.06(1),
Florida Statutes.

1972 Amendment. (a) of former rule deleted, as its substance
is now contained in rules 3.710, 3.711, and 3.713. Former
subdivisions (b) and (c) are now renumbered (a) and (b) respectively.

1988 Amendment. This amendment changes wording to
conform with current responsibilities of the Department of
Corrections to supervise a person placed on either probation or
community control and brings community control within the scope
of the rule.