Arrestable Offenses / Crimes under Fla. Stat. 948.06
CopyCited 274 times | Published | Supreme Court of Florida
...Only after probation is revoked may pronouncement and imposition of a sentence be made upon a defendant. Fla.R.Crim.P. 3.790(b). In such event the court may impose any sentence which it might have originally imposed before placing the defendant on probation. § 948.06(1), Fla....
...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....
CopyCited 204 times | Published | Court of Appeals for the Eleventh Circuit | 2010 WL 2089257
...the trial court may, in its
discretion, impose a fine upon him or her and place him or her on probation or into
community control as an alternative to imprisonment.”). Both are conditional
forms of release subject to revocation. See Fla. Stat. § 948.06....
CopyCited 182 times | Published | Supreme Court of Florida
...y the parole and probation commission or the court." Other pertinent statutory provisions, provide: "949.11 Hearing. Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to §
947.23 or §
948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of §
947.23 or §
948.06 notwithstanding....
...e temporary revocation. "949.12 Immediate temporary revocation; bail not allowed. A person whose parole or probation has been temporarily revoked pursuant to § 949.10 shall not be admitted to bail prior to the hearing provided for in § 949.11. "948.06 Violation of probation; revocation; modification; continuance....
...Florida law nowhere authorizes a mere arrest without probable cause. Section 949.10, Florida Statutes, F.S.A., read in para materia with Sections 949.11 and 949.12, Florida Statutes, F.S.A, provides that prior to the revocation hearing to be conducted pursuant to the requirements of Section 948.06, Florida Statutes, F.S.A., the probationer who has been arrested on a felony charge shall not be permitted to be admitted to bail....
...tion decision." *500 and determined that a probationer like a parolee is entitled to a preliminary and a final revocation hearing under the conditions specified in Morrissey . The instant proceedings provided pursuant to Sections 949.10, 949.11, and 948.06 clearly accord with the mandates of Morrissey and Gagnon ....
...vidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated....
CopyCited 139 times | Published | Supreme Court of Florida | 1988 WL 97920
...After the decisions in Poore and Wayne, the Fifth District, sitting en banc, reconsidered this issue in Franklin v. State,
526 So.2d 159 (Fla. 5th DCA 1988) (en banc). The en banc court in Franklin receded from dicta in Poore and Wayne suggesting that section
948.06(1), Florida Statutes (1987), [2] violated double jeopardy when applied to violations of probation where either a true split sentence or a probationary split sentence had been imposed....
...Such a resentencing does not violate the prohibition against double jeopardy. Williams,
650 F.2d at 61; State v. Payne,
404 So.2d 1055 (Fla. 1981). Provided there is a relevant new fact not previously considered, the trial court constitutionally is permitted to impose a greater sentence, as authorized by section
948.06....
...period of probation; (4) a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation. If the defendant violates his probation in alternatives (3), (4) and (5), section 948.06(1) and Pearce permit the sentencing judge to impose any sentence he or she originally might have imposed, with credit for time served and subject to the guidelines recommendation. However, if alternative (2) is used as the original sentence, the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence. Section 948.06(1) would not apply in this latter instance because no new fact would be available for consideration by the sentencing judge....
...NOTES [1] This conclusion was erroneous. Our decisions, as well as Florida Rule of Criminal Procedure 3.701(d)(14), permit a one-cell upward departure upon a probation violation without requiring a reason for the departure. See State v. Pentaude,
500 So.2d 526, 528 (Fla. 1987). [2] Section
948.06(1), Florida Statutes (1987), provides in pertinent part: If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previou...
CopyCited 73 times | Published | Supreme Court of Florida | 2007 WL 3101817
...to what he [or she] must do or refrain from doing while on probation."
358 So.2d at 185. The due process protection of adequate notice is not only found in the constitution, see art. I, § 9, Fla. Const., but also in the Florida Statutes. See, e.g., §
948.06(1)(a), Fla. Stat. (2005) (setting forth the process for assessment and resolution of probation violations). For instance, section
948.06(1)(a) authorizes the arrest of a probationer and subsequent revocation of probation upon adequate proof if "there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect." Id....
CopyCited 72 times | Published | Supreme Court of Florida
...The statute further expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court which entered the probation order whenever there is a reasonable ground to believe the probationer has violated his probation. § 948.06, Fla....
CopyCited 66 times | Published | Supreme Court of Florida
...This is a petition for writ of certiorari to review the decision of the Third District Court of Appeal reported at
296 So.2d 519 (Fla.App.3d 1974), upon its certified question. The question involves probation which is preceded by a specified period of jail time and requires a construction of Sections
948.01(4),
948.03, and
948.06, Florida Statutes (1973)....
...STAT., F.S.A.), UPON REVOCATION OF THE PROBATION CAN THE COURT IMPOSE, ON THE ALREADY SENTENCED DEFENDANT, A NEW SENTENCE OF IMPRISONMENT IN THE STATE PENITENTIARY FOR A PERIOD OF YEARS, SUCH AS THE COURT COULD HAVE ORIGINALLY IMPOSED (AS PERMITTED BY § 948.06 FLA....
...probation pursuant to Section
948.01(4), Florida Statutes (1973), who subsequently violates that probation may be sentenced to imprisonment by the trial judge for the same period of years as the court could have originally imposed in accordance with Section
948.06, Florida Statutes (1973), without the necessity of establishing a term of sentence and withholding a part of it at the initial sentencing proceedings....
...laced on four years probation, conditioned on his spending one year in jail. The defendant left the jail without permission, which resulted in the trial court's revoking his probation and sentencing him to three years in the state prison pursuant to Section 948.06, Florida Statutes....
...he initial sentencing proceeding. A similar result was reached in Woodruff v. State,
309 So.2d 55 (Fla.App.2d 1975), and Harrell v. State,
308 So.2d 51 (Fla.App.2d 1975). In Ivey v. State,
308 So.2d 565 (Fla.App.2d 1975), the Second District, citing Section
948.06(2), Florida Statutes, held the time spent in jail pursuant to a split sentence alternative was a valid condition of probation and the defendant was not entitled to credit for the jail time served upon revocation of that probation....
...iately followed by the withholding of a part thereof for use in the event probation is violated. This interpretation is inconsistent with the procedure for straight probation as authorized by Section
948.01(3), Florida Statutes, and in conflict with Section
948.06, Florida Statutes....
...[3] We further hold that a defendant must be given credit for the time spent in jail pursuant to the split sentence probation order whether it is imposed pursuant to Section
948.01(4), Florida Statutes, or as a condition of probation under Section
948.03, Florida Statutes. We construe Section
948.06(2), Florida Statutes, to apply only to time spent under probation supervision without incarceration....
...I therefore respectfully dissent. NOTES [1] Art. V, § 3(b)(1), (3), Fla. Const. [2] See Chapters 921 and 922, Florida Statutes. [3] Our interpretation herein is consistent with the provisions of RCrP 3.790. [4] The order is governed by Sections
948.03 and
948.06, Florida Statutes (1973), and the trial judge is not restricted by the sixty-day provision of RCrP 3.800....
CopyCited 57 times | Published | Supreme Court of Florida
...We must now determine whether a valid conviction is a condition precedent to the *599 revocation of a probation order grounded upon a violation of so-called "Condition H", which merely requires that the accused "must live and remain at liberty without violating any law." Under Section 948.06 a Florida probationer is entitled to a notice and hearing in any proceeding for the revocation of the probation order....
CopyCited 56 times | Published | Supreme Court of Florida | 1996 WL 606773
...King,
648 So.2d at 190 (Benton, J., concurring and dissenting). The issue presented here is whether a trial judge, upon revocation of probation, can lawfully impose an habitual felony offender sentence, despite having declined to impose such a sentence at the original sentencing. Based upon section
948.06(1), Florida Statutes (1989), [3] and the fact that King violated his order of probation, the district court concluded that the trial judge properly imposed an habitual offender sentence upon revocation of King's probation....
...delines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. [3] Section 948.06(1), Florida Statutes (1989), deals with violation of probation and the consequences thereof. The statute provides, in pertinent part, that upon revocation of probation "the court shall ... impose any sentence which it might have originally imposed before placing the probationer on probation." § 948.06(1), Fla....
CopyCited 46 times | Published | Supreme Court of Florida | 1994 WL 81822
...conditions of probation. See Williams v. State,
578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section
948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v. State,
579 So.2d 109, 110 (Fla. 1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; §
948.06(1), Fla....
CopyCited 45 times | Published | Supreme Court of Florida
...d toward the new sentence, i.e., the term of incarceration imposed."
625 So.2d at 878. It should not be read to hold that time previously served on probation may not be credited toward a new probationary term after revocation of probation. Likewise, section
948.06, Florida Statutes (1987), [2] cannot be read to preclude the crediting of time already served on probation in this case. Section
948.06 provides in pertinent part: (1) ......
...or offender on probation or into community control. (2) No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve. *744 Like our decision in Holmes, section 948.06(2) does not address the question presented here....
CopyCited 41 times | Published | Florida 1st District Court of Appeal | 1996 WL 168613
...But she testified that, on January 11, 1995, appellant came to her office and provided an address. [3] She did not testify that she withheld consent for any change of residence. Revocation of probation is appropriate when a probationer violates "his probation... in a material respect." § 948.06(3), Fla.Stat.(1995)....
CopyCited 33 times | Published | Supreme Court of Florida | 1994 WL 556906
...I can find nothing in the pertinent statutes or Sentencing Guidelines that would authorize the sentencing court in this case to add the mistakenly omitted prior convictions to Roberts' scoresheet. The court obtained its authority to resentence Roberts after revocation of his probation from section 948.06, Florida Statutes (1991), and the Sentencing Guidelines found in the Florida Rules of Criminal Procedure. [1] Section 948.06(1) provides, in pertinent part: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and...
...ter sentence than the legislature has authorized); Goene,
577 So.2d at 1308 (Double Jeopardy Clause bars punishment in excess of that permitted by law). Under the circumstances present here, Roberts could legitimately expect that, in accordance with section
948.06(1) and the Sentencing Guidelines, his sentence would not be increased more than one cell from the range established on the original scoresheet absent valid reasons for departure....
CopyCited 33 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 732, 2011 Fla. LEXIS 2878, 2011 WL 6220783
...(1) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer's ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011), [1] which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional....
...Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State's evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional....
...r or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts *1004 legally to acquire the resources to do so.' § 948.06(5), Fla....
...(2011)); (2) when the State or the victim attempts to enforce the restitution order (§
775.089(5), (6)(b), Fla. Stat.); and (3) if the defendant is placed on probation, when the trial court considers revoking probation based on the defendant's failure to pay restitution as ordered (§§
948.032,
948.06(5), Fla....
...and financial resources; the willfulness of the defendant's failure to pay; and any other special circumstances that may have a bearing on the defendant's ability to pay." Id. This statute was enacted in 1984, [5] shortly after Bearden was decided. Section 948.06, Florida Statutes, the statute at issue in this case, governs probation revocation proceedings....
...Only if alternate measures are not adequate to meet the state's interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision. § 948.06(5), Fla. Stat. (2011). This provision in the statute was added in 1984 as section 948.06(4)....
...rmination with regard to the probationer's ability to pay. See Martin v. State,
937 So.2d 714, 715-16 (Fla. 1st DCA 2006). In fact, the First District has held that the failure of the trial court to make a finding of willfulness is reversible error: Section
948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer's ability to pay....
...In Guardado,
562 So.2d at 696-97, the Third District stated: With regard to the third ground, failure to make payments for the cost of supervision, it is true that there should have been a finding of ability to pay. See Brown v. State,
537 So.2d 180, 181 (Fla. 3d DCA 1989). However, under subsection
948.06(4), Florida Statutes (1989),[ [7] ] inability to pay the cost of supervision is a defense which the probationer must prove by clear and convincing evidence....
...As stated by this Court in Stephens,
630 So.2d at 1091, there must be a determination that the probationer has, or has had, the ability to pay but has willfully refused to do so. Thus, the trial court must inquire into a probationer's ability to pay before determining willfulness. Constitutionality of Section
948.06(5) We next turn to the constitutional validity of the burden-shifting scheme of section
948.06(5). We first address the failure of section
948.06(5) to require the State to establish willfulness; and second, the constitutional validity of the requirement in section
948.06(5) that the probationer prove inability to pay by the heightened standard of clear and convincing evidence....
...at 668,
103 S.Ct. 2064. Accordingly, if the State seeks to revoke probation on the basis of failure to pay, it must introduce evidence on the probationer's ability to pay that would support the trial court's finding of willfulness. The plain text of section
948.06(5), however, does not expressly address this requirement but only requires the State to establish failure to pay before the burden of proof shifts to the defendant to prove inability to pay. The absence of any recognition or mention of the element of willfulness as a first step in section
948.06(5) could alone render the statute unconstitutional. Reading section
948.06(5) without the constitutionally required element would undermine its validity, and, therefore, we have an obligation to give the *1013 statute a constitutional construction where such a construction is possible. See Tyne v. Time Warner Entm't Co.,
901 So.2d 802, 810 (Fla.2005). The problem with section
948.06(5) is not what is in the statute, but rather what is not. Section
948.06(5) can be reconciled with Stephens and Bearden by simply reading into the statute the recognized element that there must be evidence presented of willfulness and construing it in pari materia with section
948.032, Florida Statutes (201...
...robationer's employment status, earning ability, financial resources, willfulness of failure to pay, and any other special circumstances that may have a bearing on the probationer's ability to pay. Construing these statutes in pari materia preserves section 948.06(5) and the Legislature's intent to shift the burden of proving inability to pay to the defendant, while at the same time respecting the underpinning of the constitutional requirement of a determination of willfulness as enunciated in Bearden and Stephens....
...d (2) in a civil enforcement action where incarceration is not at stake, the probationer is held only to a preponderance of the evidence standard to demonstrate his or her financial resources. We further consider that the Legislature has not amended section 948.06(5) with respect to placing the burden on the probationer to prove inability to pay by clear and convincing evidence since adding the requirement in 1984at which time the financial resources of the defendant were a factor that the tri...
...PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur. CANADY, C.J., dissents with an opinion. LEWIS, J., dissents with an opinion, in which POLSTON, J., concurs. CANADY, C.J., dissenting. The central issue presented by this case, in which the petitioner challenges the constitutionality of section 948.06(5), Florida Statutes (2011), is whether in probation revocation proceedings, the burden of showing inability to pay may be placed on a probationer who has failed to make payments ordered as a condition of probation....
...e State "present sufficient evidence" of the probationer's ability to pay before revocation for failure to pay is proper. Majority op. at 1002. Transforming the clear meaning of the statutory text, the majority invokes the avoidance canon and treats section 948.06(5) as merely giving the probationer an opportunity to rebut the State's evidence of ability to pay....
...to pay in probation revocation proceedings where the State seeks revocation on the ground that the probationer has failed to make payments required as a condition of probation. Neither casenor any other authorityprovides any basis for declaring section 948.06(5) unconstitutional or for the majority's use of the avoidance canon to rewrite the statute. Our decision in Stephens does not address the enforcement or constitutionality of section 948.06(5)....
...The statement does not transform probation revocation proceedings from adversarial proceedings in which the judge sits as a neutral arbiter into inquisitorial proceedings in which the judge's role is to investigate matters which are not raised by the probationer. The majority states that section 948.06(5)'s burden-shifting scheme "is constitutionally permissible," majority op....
...at 1013, but thenbased on an unwarranted reading of Bearden and Stephens resorts to "reading into the statute" a requirement that entirely defeats the burden-shifting provision adopted by the Legislature. Majority op. at 1013. This is not coherent. It does violence to section 948.06(5), and it does violence to the avoidance canon....
...The avoidance canon cannot properly justify the rewriting and the evisceration of a statutory provision in the manner accomplished by the majority decision. If the majority's understanding of Bearden was correctwhich it is notthe proper course of action would be to declare section 948.06(5) unconstitutional....
...t. The petitioner presented wholly insufficient evidence to establish his inability to pay. Although the petitioner indicated that he had no job, he did not say what efforts he had made to obtain a job. For a probationer to show an inability to pay, section 948.06(5) requires that the probationer establish a lack of resources to pay the amount ordered "despite sufficient bona fide efforts legally to acquire the resources to do so." The petitioner totally failed to show any such "bona fide effort...
...I would disapprove Shepard v. State,
939 So.2d 311 (Fla. 4th DCA 2006), Blackwelder v. State,
902 So.2d 905 (Fla. 2d DCA 2005), and Osta v. State,
880 So.2d 804 (Fla. 5th DCA 2004). LEWIS, J., dissenting. The majority holds that the requirement of section
948.06(5), Florida Statutes (2011), that a defendant must prove inability to pay restitution by clear and convincing evidence to avoid revocation of probation is unjustifiably onerous and unconstitutional. I dissent. The majority has failed to demonstrate that section
948.06(5) is unconstitutional, and has incorrectly elevated the due process rights inherent in a revocation proceeding....
...y of the defendant. See id. If the State proves a willful violation of the restitution order by the defendant, the burden shifts to the defendant to prove inability to pay by clear and convincing evidence if he or she is to avoid revocation. See id. § 948.06(5)....
...ility to pay, and the burden that such a party carries. As a result, the Second, Fourth, and Fifth Districts have all implicitly held that the burden is on the State to prove inability to pay in probation revocation hearings, but none have held that section 948.06(5) is unconstitutional....
...osts or restitution, there must be evidence and a finding that the probationer had the ability to pay.") (citing Warren v. State,
924 So.2d 979, 980-81 (Fla. 2d DCA 2006)); Blackwelder v. State,
902 So.2d 905, 907 n. 1 (Fla. 2d DCA 2005) ("[S]ection
948.06(5), despite its plain language, cannot relieve the State of its burden to prove that the violation was willful by proving the probationer's ability to pay.") (citing Osta v....
..., and in order to prove `willfulness' the State must provide evidence that the probationer has the ability to pay restitution but willfully refuses to do so.") (citing Stephens,
630 So.2d at 1090; Hartzog v. State,
816 So.2d 774 (Fla. 2d DCA 2002)). Section
948.06(5), however, expresses with indisputable clarity the Legislature's intent to shift the burden of proving inability to pay by clear and convincing evidence to a defendant who asserts such a claim. This burden-shifting element of section
948.06(5) is clear and unambiguous and does not require judicial construction....
...efer to the Legislature's clear intention to shift the burden of proving inability to pay by clear and convincing evidence in a probation revocation proceeding to the probationer. Further, because the Second, Fourth, and Fifth Districts did not hold section 948.06(5) to be unconstitutional, they should not supersede the Legislature's indisputably clear intent and the clear language of the statute to place the burden of proving inability to pay by clear and convincing evidence on a probationer. The burden with regard to inability to pay set forth in section 948.06(5) is therefore constitutionally sound and the statute must be applied as written....
...bationer to have his or her probation revoked absent an inquiry into ability to pay or a specific finding of willfulness; (3) disapprove all Second, Fourth, and Fifth District decisions to the extent they disregard the burden-shifting required under section 948.06(5); and (4) approve the approach of the First District in Martin. I dissent. POLSTON, J., concurs. NOTES [1] The 2008 version of section 948.06(5) at issue in this case is identical to the current 2011 version of the statute....
...[4] Sections
985.437 and
985.0301, Florida Statutes (2011), pertain to restitution ordered in the juvenile context. [5] See ch. 84-363, § 5, Laws of Fla. [6] The Legislature has made only minor grammatical changes to the provision since enacting it in 1984. [7] Section
948.06(4), Florida Statutes (1989), is identical to the current section
948.06(5) for purposes of this case....
CopyCited 31 times | Published | Supreme Court of Florida | 1995 WL 511413
...tory maximum for the underlying offense.
644 So.2d at 587. We agree with the Bragg court's treatment of the issue and adopt its reasoning as our own. This is consistent with our previous decisions in Summers and Roundtree and also is in harmony with section
948.06(1), (2), Florida Statutes (1993)....
...[1] Accordingly, we answer the certified question in the affirmative, quash the decision *334 under review, and remand for further proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 948.06(1) states that if probation or community control is revoked, the court may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation or community control." Section 948.06(2) provides that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve."
CopyCited 30 times | Published | Supreme Court of Florida | 1991 WL 66663
...ial court added a more onerous condition to his community control without a hearing. The district court concluded that there is no requirement of a judicial proceeding where voluntary modification occurs before the filing of an affidavit pursuant to section 948.06, Florida Statutes (1987), alleging a violation of probation or community control....
...The court terminated his probation and sentenced him to eighteen months' imprisonment. The district court of appeal reversed, accepting Holcombe's argument that the trial court erred in enhancing the conditions of his original probation without complying with section 948.06. The court relied on cases holding that a probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures of section 948.06....
...State,
516 So.2d 331 (Fla. 1st DCA 1987); Gurganus v. State,
391 So.2d 806 (Fla. 5th DCA 1980); Patrick v. State,
336 So.2d 1253 (Fla. 1st DCA 1976). [2] The trial court erred in this case by enhancing the terms of Clark's community control without notice and hearing. Section
948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control....
...[3] Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer *111 must be brought before the court and advised of the charge following the procedures of section 948.06....
...unity control, the adjudication of guilt, and the sentence of imprisonment be vacated. It is so ordered. SHAW, C.J., and OVERTON, BARKETT, KOGAN and HARDING, JJ., concur. McDONALD, J., dissents: "I would approve the decision under review." NOTES [1] Section 948.06(1), Florida Statutes (1987), provides: (1) Whenever within the period of probation or community control there is reasonable ground to believe that a probationer or offender in community control has violated his probation or community c...
CopyCited 30 times | Published | Florida 4th District Court of Appeal
...rpelli was entitled to a preliminary and a final revocation hearing as specified in Morrissey v. Brewer. In Florida there are three separate procedures for arresting and holding a probationer as prelude to a probation revocation hearing. First, F.S. Section 948.06, F.S.A., authorizes any probation supervisor, upon reasonable ground to believe a violation has occurred, to arrest a probationer without a warrant, and forthwith return him to the court granting probation....
...provide for right of bail before determination of guilt by verdict or acceptance of plea of guilty; the logical dividing line is not formal judgment of conviction, see for an analogous problem, State v. Gazda, Fla.S.Ct. 1971,
257 So.2d 242. [5] F.S. Section
948.06(1), F.S.A....
...[9] Because he is not the trial judge and the warrant has been issued by a trial circuit judge without bail endorsed [RCrP Rule 3.130(d)] or because RCrP Rule 3.790 vests bail discretion in the judge granting the probation. See Bernhardt v. State, Fla.,
288 So.2d 490, opinion filed January 9, 1974. [10] See F.S. Section
948.06(1), F.S.A....
...[12] A full hearing includes the procedural due process requirements of notice, disclosure, opportunity to be heard and to present witnesses and the limited right of confrontation and cross-examination, contemplated in Morrissey for a final hearing. [13] F.S. Section 948.06(1), F.S.A....
...e based judicially issued warrant or held after a RCrP Rule 3.131 type preliminary hearing or held after a Morrissey style preliminary hearing or after appearing before the judge granting probation who has committed him without bail, under F.S. Sec. 948.06(1), F.S.A., "to await further hearing." [18] This requirement of a final revocation hearing within 10 days would meet the Morrissey requirement for the preliminary hearing to be held "as promptly as convenient after arrest while information is...
CopyCited 27 times | Published | Supreme Court of Florida
...§
948.03, F.S.A.). (2) If, during the said five years, it should appear to said court that further supervision would be beneficial to the Appellant or to society, the said court may by order extend the supervision period for two extra years (F.S. §§
948.04,
948.06 and 800.01, F.S.A.)....
...st be returned to the Circuit Court for a determination of that charge. This may result in revocation, modification or continuance of probation. If it results in revocation, the Circuit Court must adjudge the Appellant guilty and sentence him. (F.S. § 948.06, F.S.A.) It is true the statutes authorize trial courts to enter orders of probation and expressly authorize appeal therefrom the same as if they were final judgments....
CopyCited 26 times | Published | Florida 2nd District Court of Appeal | 2013 WL 4610009, 2013 Fla. App. LEXIS 13979
...ponsible for his release from Teen Challenge Program before successful completion required by probation condition). Step Two Upon finding a violation of probation or community control, the court decides whether to revoke, modify, or continue it. See § 948.06(2)(a, e), Fla....
...Casner,
825 So.2d 993, 993 (Fla. 2d DCA 2002); Brown v. State,
455 So.2d 635 (Fla. 5th DCA 1984) (citing Harris v. State,
453 So.2d 228 (Fla. 5th DCA 1984)). If the trial court revokes probation, it may impose any sentence it might initially have imposed. §
948.06(2)(b, e); Hill v....
CopyCited 25 times | Published | Supreme Court of Florida | 1994 WL 442255
...It has long been the rule that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S....
...However, it asks us to create an exception that would allow consideration of untimely filed charges contained in an amended affidavit of probation violation when the newly charged violations occur at or near the end of the probationary term. We decline to do so. The pertinent language contained in sections
948.04(2) and
948.06(1), Florida Statutes (1991), is substantially the same as the statutory language upon which the jurisdictional rule was first based....
...3d DCA 1968) (relying on 1967 version of both provisions). Section
948.04(2) provides: Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed. *405 Consistent with this pronouncement, section
948.06(1), which deals with revocation and modification of probation, is triggered when "within the period of probation" there are reasonable grounds to believe that a condition of probation has been violated in a material way. This Court agreed that these provisions are jurisdictional in Carroll v. Cochran,
140 So.2d at 301. Although there have been various amendments to sections
948.06(1) and
948.04(2) throughout the years, [2] there has been no legislative response to our opinion in Carroll or to the subsequent district court opinions holding that a court lacks jurisdiction to consider new allegations contained in an untimely amended affidavit....
...I do not believe that a probationer who commits a probation violation "within the period of probation" may escape any punishment for the violation if the law enforcement authority does not file a probation violation petition or have the probationer arrested within the period of probation. Section 948.06(1), Florida Statutes (1993), provides: Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his probation or community con...
...been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. Clearly, the violation must occur during the probationary period, but, as I read section 948.06(1), there is no requirement that the petition setting forth probable cause of a probation violation must be filed within that period....
...thorities were unable to file the petition for violation of probation because they did not know that the offender committed the offense until after the probation period had expired. My interpretation of the phrase "within the period of probation" in section 948.06(1) is that the phrase is intended to allow probation supervisors or law enforcement officers to arrest probationers without a warrant during that period....
...McDONALD, Senior Justice, concurs. NOTES [1] Art. V. § 3(b)(4), Fla. Const. [2] See, e.g., ch. 74-112, § 10; ch. 91-280, § 5, Laws of Fla. (rewrote section
948.04(2)); ch. 89-526, § 38, Laws of Fla. (amended and made nonsubstantive language changes to section
948.06(1)).
CopyCited 24 times | Published | Florida 1st District Court of Appeal
...expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S., F.S.A....
...The latitude of inquiry is such that even though evidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated....
CopyCited 24 times | Published | Florida 2nd District Court of Appeal
...Sullivan, appellant and counsel, along with several witnesses, appeared before the court. After this inquiry the court instructed the appellant to return on April 15, 1965, at which time an order would be entered. The subject of this appeal requires us to consider the construction of Florida Statute 948.06(1), F.S.A., which provides as follows: "948.06 Violation of probation; revocation; modification; continuance....
...robation." Appellant submits the following question for determination: Did the court err by failing to give the appellant probationer an opportunity to be fully heard before revoking probation under the above statute? Appellant apparently interprets § 948.06 (1) to mean the first appearance before the judge in a revocation hearing should be similar to an arraignment procedure, on a separate day, as in a full scale criminal trial....
CopyCited 24 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 8750, 2009 WL 1782987
...months' probation for grand theft, all of which were to run concurrently. In the 2005 case, Appellant was sentenced to 12 months' probation, to *675 be served concurrently with the other case. In accordance with the terms and conditions set forth in section 948.06, Florida Statutes (2005), the following are among Appellant's 22 general conditions of probation: (1) Each month you will make a full and truthful report to your Probation Officer on the form provided for that purpose....
...Smith v. State,
711 So.2d 100, 102 (Fla. 1st DCA 1998). Condition (2) It is undisputed that Appellant failed to pay the full costs of his supervision before his probation was revoked. Once non-payment is shown, the probationer has the burden under section
948.06(5), Florida Statutes (2005), to prove, by clear and convincing evidence, his or her inability to pay....
...ility to pay but has willfully refused to do so." Stephens v. State,
630 So.2d 1090, 1091 (Fla.1994); see Bryant v. State,
546 So.2d 762 (Fla. 5th DCA 1989). The same principle applies to the requirement to pay the costs of probationary supervision. Section
948.06(5) does not relieve the trial court of its duty to determine that the violation was willful by proving the probationer's ability to pay....
CopyCited 24 times | Published | Supreme Court of Florida | 2002 WL 1430378
...nce and Mack *750 was placed on straight probation rather than being sentenced to a guidelines period of incarceration followed by a period of probation as in King. The State contends that because probation is not a sentence, King is inapposite, and section 948.06(1), Florida Statutes (1989), controls....
...use when the probationary portion of Mack's sentence was extended in 1996, his original true split sentence "faded away" and was replaced by the new probationary period; thus, the State argues, the subsequent five-year sentence was permissible under section 948.06(1), Florida Statutes (1989), which provided that upon violation of probation, the sentencing judge may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation." In light of th...
CopyCited 22 times | Published | Supreme Court of Florida | 1997 WL 401177
...ence for the aggravated assault that exceeded the five year statutory maximum for a third-degree felony. See §
775.082(3)(d), Fla. Stat. (1991). [2] The district court affirmed the sentence. Young,
678 So.2d at 429. The court found that pursuant to section
948.06(1), Florida Statutes (1993), [3] section
948.06(2), Florida Statutes (1993), [4] and this Court's decision in State v....
...fense. Id. at 429. The court questioned whether the legislature and this Court intended such a result and consequently certified the question before us. Id. We agree with the district court that Young's sentence should be affirmed. We have held that section
948.06 is applicable when a defendant violates a probationary split sentence. See Poore v. State,
531 So.2d 161, 164 (Fla.1988). Further, we have held that section
948.06(1), in conjunction with the United States Supreme Court decision in North Carolina v....
...Holmes,
360 So.2d at 383; see also State v. Summers,
642 So.2d 742, 743 (Fla.1994). Likewise, credit cannot be given for time served on community control. See Ogden v. State,
605 So.2d 155, 158 (Fla. 5th DCA 1992), and cases cited therein. [6] This is because section
948.06(2), prohibits a court from crediting probation or community control toward a sentence of incarceration. Specifically, section
948.06(2) provides that no part of the time a defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve....
...[2] Young could not challenge the five-and-a-half year sentence imposed for the armed robbery on a similar basis, because the statutory maximum for a first-degree felony is greater than five and one-half years. §
775.082(3)(a), Fla. Stat. (1991). [3] The pertinent portion of section
948.06(1) reads as follows: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. [4] Section
948.06(2) provides: No part of the time that a defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve. [5] The term "sentence" in section
948.06 refers to incarceration....
CopyCited 22 times | Published | Florida 4th District Court of Appeal
...of which are to be served in prison and not more than two years in community control. If the youthful offender violates the terms of his community control, the circuit court has jurisdiction to proceed pursuant to section
958.14, which incorporates section
948.06(1), to revoke the community control and pronounce sentence upon him....
...han thirty years ( See section
775.082(3)(b), Florida Statutes (1979)). However, the State takes the position that, upon a revocation of community control, the court may, under authority of section
958.14, Florida Statutes (1979), which incorporates section
948.06(1), impose whatever sentence it might originally have imposed without regard to the youthful offender act....
...If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender's Community Control Program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes? DOWNEY, LETTS and GLICKSTEIN, JJ., concur.
CopyCited 21 times | Published | Florida 5th District Court of Appeal | 1988 WL 54214
...ect, as there was no authority or necessity to impose a second sentence. Instead, the court held that the defendant should have been recommitted to serve the remainder of the suspended sentence. In addition, in dictum in Poore, the court stated that section 948.06(1), Florida Statutes (1987), which allows a court upon revoking probation, to impose any sentence which it might have originally imposed, applied only to cases where a defendant was originally placed on straight probation without any incarceration....
...inuing the five years probation. The Jones court held that a trial judge is not required to impose a total sentence and then immediately withhold a portion for use in the event that probation is violated, since such a requirement would conflict with section 948.06, Florida Statutes, authorizing a trial judge to impose any sentence he might have originally imposed after revoking probation....
...[8] This court, in Johnson v. State,
482 So.2d 398 (Fla. 5th DCA 1985) specifically held that a defendant originally sentenced as a youthful offender may, upon violation of a term of probation or community control, be resentenced in accordance with section
948.06(1), Florida Statutes, without reference to the youthful offender provisions....
...a violation of probation for a period longer than six years or the statutory maximum, whichever is less, [9] the amendment does not require a court to reclassify a defendant as a youthful offender after a violation. See Crosby, supra . Accordingly, section 948.06 may still be applied when the court determines that the defendant should no longer be classified as a youthful offender, allowing the court to sentence a defendant after revocation to any term which could have been originally imposed without reference to the act....
CopyCited 21 times | Published | Supreme Court of Florida
...The warrant was served on petitioner on June 7, 1961. On June 30, 1961 the court entered its order of revocation of probation. It then entered its judgment and sentence, said sentence being confinement in the state prison for a term of two years. The sentence was excessive. Under Sec. 948.06, F.S.A....
...expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S., F.S.A....
CopyCited 20 times | Published | Supreme Court of Florida | 1991 WL 88740
...ich existed at the time he was placed on probation, because in placing him on probation the court necessarily had to find that he was not likely again to engage in a criminal course of conduct. See §
948.01(3), Fla. Stat. (1987). On the other hand, section
948.06(1), Florida Statutes (1987), provides that upon revoking a defendant's probation the court is authorized to impose any sentence that it might have originally imposed before placing a defendant on probation....
CopyCited 20 times | Published | Supreme Court of Florida | 2000 WL 963827
...the term of probation imposed "is not a convicted person." Thomas v. State,
356 So.2d 846, 847 (Fla. 4th DCA), cert. denied,
361 So.2d 835 (Fla.1978). However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. §
948.06(1), Fla....
CopyCited 20 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 219, 2010 Fla. LEXIS 645, 2010 WL 1609876
...First, Sanders argued that the trial court erred in revoking his probation and sentencing him for the third-degree felony offenses because Sanders had completed *867 his probation for those offenses. The Second District agreed. The Second District explained that pursuant to section 948.06, Florida Statutes (1999), the trial court did not have jurisdiction over the offenses for which Sanders had completed his probation....
...efendant was placed on probation" and that the trial court shall "impose any sentence which it might have originally imposed before placing the probationer on probation." Id. at 235 (quoting Adekunle v. State,
916 So.2d 950, 952 (Fla. 4th DCA 2005); §
948.06(1), Fla....
...in scoring. Our holding in Roberts is thus inconsistent with the reasoning employed by the Second District. Next, the Second District determined that the third-degree felonies should be scored exactly as they were at the original sentencing because section
948.06(1), Florida Statutes, provides that in a sentencing proceeding following a violation of probation, the trial court shall "impose any sentence which it might have originally imposed before placing the probationer on probation." Sanders,
16 So.3d at 235 (quoting
948.06(1), Fla....
...The Second District concluded that scoring the third-degree felonies as additional offenses "would be the only possible way to ensure" that Sanders faced the same sentencing possibilities upon the revocation of his probation. Id. We conclude, however, that this broad reading of the relevant provision of section
948.06(1) cannot be reconciled with the plain import of sections
921.0021(1) and
921.0024(1)(b) or with our reasoning in Roberts. In the context of the related statutory provisions, it is more reasonable to understand the provision of
948.06(1) as stating a rule that parallels the provision of rule 3.704(d)(28) that sentences imposed upon revocation of probation "must be imposed according to the sentencing law applicable at the time of the commission of the original offense." Havi...
CopyCited 19 times | Published | Florida 4th District Court of Appeal | 2000 WL 1505076
...If a defendant violates terms and conditions of supervision, the court can revoke the defendant's probation or community control. In such event, the court may "impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control." § 948.06(1), Fla....
CopyCited 19 times | Published | Supreme Court of Florida | 2008 WL 1901668
...harged and proven or admitted, unless the probationer or offender has been previously adjudged guilty of the offense, and impose any sentence which it might have originally imposed before placing the defendant on probation or into community control. § 948.06(1), Fla....
...nally imposed, reinstating the original order of parole, ordering the placement of the parolee into a community control program, or entering such other order as is proper. §
947.23(6)(a)-(b), Fla. Stat. (2003). [7] This law is currently codified as section
948.06(2)(b), Florida Statutes (2007)....
CopyCited 19 times | Published | Supreme Court of Florida | 1990 WL 29523
...imprisonment, thereby limiting the trial court's discretion in resentencing. Section
958.14 provides: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)....
...ich he was found guilty, whichever is less, with credit for time served while incarcerated. The state argued that section
958.14 was not intended to limit the circuit court's discretion, and that the court was free to resentence the defendants under section
948.06(1) to any sentence that the court might have originally imposed before it put the defendants on community control....
...ntrolling law at the time, which was the pre-1985 version of section
958.14. That statute provided in its entirety: A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)....
...To assume that the legislature did not intend a change in the law would be to assume it intended to enact a nullity. The language of §
958.14, as amended, relating specifically to resentencing of youthful offenders after violation of probation or community control, should prevail over the preexisting general provisions of §
948.06(1) relating to any violation of probation or community control by anyone....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 2000 WL 560996
...Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control." § 948.06(1), Fla....
CopyCited 18 times | Published | Florida 2nd District Court of Appeal | 1990 WL 21422
...We find no merit in the appellant's contention that he was not given a proper probation revocation hearing. At a probation revocation hearing, the court must advise the probationer of the charges, and then if admitted, the court may revoke the probation. § 948.06(1), Fla....
CopyCited 18 times | Published | Supreme Court of Florida | 2005 WL 1576143
...After serving his entire prison sentence and part of his community control, he violated the conditions of his community control. Id. The trial court refused to give him credit against his subsequent prison sentence for the time he spent in community control. Id. We upheld that decision, noting that section 948.06(2), Florida Statutes (1993), provided that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." We interpreted that provision (since renumbered as section 948.06(3), see ch....
...Fraser, we explained, merely "recognized a limited exception to this general rule" for those unusual circumstances "when the original term of community control is revoked as illegal." Id. at 77 n. 6. [1] *390 After Young, three district courts have held that the plain meaning of section 948.06(3) forbids jail-time credit for time spent in community control, with the limited exception adopted in Fraser....
...5th DCA 2001) (holding that "credit cannot be awarded for time served on community control"). Despite this clear statutory directive, Cregan insists he is entitled to credit for the time he spent in a drug rehabilitation facility as a condition of community control. He argues, first, that section 948.06(3) applies only when the revocation of a defendant's community control results in supervised release, as opposed to imprisonment....
...sentencing, would exceed the maximum penalty allowable as provided by s.
775.082. No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he or she shall be sentenced to serve. §
948.06(3), Fla. Stat. (2003). Cregan claims that the first sentence of section
948.06(3) modifies the last one....
...tion or community control, a court imposes a further term of probation or community control. This argument overlooks the plain language of the last sentence. It also ignores the history of the statute. For more than fifty years, the last sentence of section 948.06(3) stood alone....
...State,
678 So.2d 427 (Fla. 4th DCA 1996), we held that the provision prohibited a court only from applying time spent on probation or community control to a subsequent term of incarceration. See Young,
697 So.2d at 77 n. 5 ("The term `sentence' in section
948.06 refers to incarceration....
...intend that a releasee who violates the terms and conditions of release receive credit for time spent under that failed supervision." Gay,
700 So.2d at 1222 n. 5. Our holding in Young therefore remains valid. Cregan's other argument against applying section
948.06(3) is that time spent in a drug rehabilitation program as a condition of community control is significantly more restrictive than time spent purely on community control, and that an evidentiary hearing is necessary to determine whether his particular program was the functional equivalent of time served in a county jail under section
921.161(1). We disagree. Section
948.06(3) admits of no exceptions: "No part of the time that the defendant is. . . in community control shall be considered as any part of the time that he or she shall be sentenced to serve." §
948.06(3), Fla....
...Given that community control is restrictive by definition, we decline to conclude that treatment in a drug rehabilitation facility is so much more restrictive as to be tantamount to confinement in the county jail. We also decline to read the jail-time credit statute as overriding the plain language of section 948.06(3). The jail-time credit statute requires that a defendant be credited for time "spent in the county jail before sentence." Although we have read that language as extending to analogous settings, such a reading should not frustrate section 948.06(3), which specifically precludes jail-time credit for time spent in community control....
...rea always controls over a statute covering the same and other subjects in more general terms." Stoletz v. State,
875 So.2d 572, 575 (Fla.2004) (quoting McKendry v. State,
641 So.2d 45, 46 (Fla.1994)). Thus, we must respect the specific directive in section
948.06(3). III. CONCLUSION We hold today, as we did in Young, that a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control. See §
948.06(3), Fla....
...denied jail-time credit as a matter of law. It is so ordered. *392 PARIENTE, C.J., and WELLS, ANSTEAD, QUINCE, and BELL, JJ., concur. LEWIS, J., concurs in result only. NOTES [1] We are baffled by the parties' failure in their merits briefs to cite section 948.06(3), Fraser, or Young....
...Those authorities directly address whether jail-time credit may be granted for time spent in community control. After we ordered supplemental briefing, the State argued that those authorities control. Cregan attempted to distinguish Fraser and Young by arguing that they "impermissibly extend" the meaning of section 948.06(3), which essentially argues for receding from controlling precedent....
CopyCited 17 times | Published | Florida 2nd District Court of Appeal
...f the trial judge revoking appellant's probation should be reversed. Appellant pleaded guilty to violations of conditions (a) and (b) of his probation. Such violations are sufficient standing alone to justify revocation of probation under Fla. Stat. § 948.06(1), 1967, F.S.A., which reads in part as follows: "The court, upon the probationer being brought before it, shall advise him of such charge of violation and if such charge is admitted to be true may forthwith revoke, modify or continue prob...
CopyCited 17 times | Published | Supreme Court of Florida | 1997 WL 656234
...We find this action to further support our conclusion that the legislature does not intend that a releasee who violates the terms and conditions of release receive credit for time spent under that failed supervision. See ch. 97-78, § 21, Laws of Fla. (amending § 948.06, Fla....
CopyCited 17 times | Published | Supreme Court of Florida | 2001 WL 776488
...d upon a youthful offender who violates probation or community control and provides in pertinent part: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1)....
...tion for a youthful offender who violates probation. Prior to 1985, section
958.14 did not specifically delineate a permissible sanction that could be imposed on a youthful offender who violated community control, other than to note, by reference to section
948.06(1), that upon revocation of community control, a trial court could impose any sentence which it might have originally imposed....
...Thus, in our view, it does not truly enhance the State's position. [5] See §
958.14, Fla. Stat. (1983) (pre-1985 version)(providing in full that "[a] violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)."). [6] A violation or alleged violation of the terms of a community control program shall subject the youthful offender of the provisions of s.
948.06(1)....
CopyCited 16 times | Published | Florida 5th District Court of Appeal | 1992 WL 217079
...upervision or public service may not be longer than the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed two years, whichever is less. [Emphasis added.] However, the state argues that section 948.06(1), Florida Statutes (1991) authorizes the sentence imposed. Section 948.06(1) provides that if a violation of probation or community control is admitted or proven, the court may revoke, modify, or continue the probation or community control or place the probationer on community control....
...wo years in any one sentencing, it is not prohibited from imposing a new two-year term of community control upon revoking a defendant's previous term of community control. *157 We recognized in Ramey v. State,
546 So.2d 1156 (Fla. 5th DCA 1989) that section
948.06(1) authorizes a court upon revocation of probation to impose any sentence it might have originally imposed....
...State,
531 So.2d 161 (Fla. 1988), the Florida Supreme Court discussed the five possible sentencing alternatives and held that when a defendant was sentenced to a probationary split sentence, a Villery sentence or straight probation and violated probation, section
948.06 permitted a sentencing judge to impose any sentence that might have originally been imposed, with credit for time served and subject to the guidelines. However, none of these cases interpreting section
948.06 involve terms of community control in excess of 2 years, but instead involve revocation of probation and resentencing to incarceration....
...ieu of being sentenced. See State v. Kendrick,
596 So.2d 1153, 1154 (Fla. 5th DCA 1992). See also §§
948.01(1), (3), and (4), Fla. Stat. (1991). In the other situation the defendant, following revocation, is finally sentenced to incarceration, and section
948.06(1) then permits the court to impose "any sentence which it might have originally imposed." We have considered the state's argument concerning the effect of section
948.06(2), Florida Statutes (1991) on this issue. Section
948.06(2), provides that "No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." Generally, a defendant is not entitled to credit for ti...
...However, as we have pointed out, this general rule has now been modified by Fraser v. State , which held that a defendant is entitled to credit for time served on community control when the defendant's sentence of community control has been revoked as illegal and not due to any fault of the defendant. Further, section 948.06(2) and the applicable case law governing credit for time served deal with the question of whether a defendant is entitled to credit for time served while on community control on any term of incarceration subsequently imposed and not wi...
...It is analogous to probation, in that a defendant is not sentenced to probation or community control, but placed on probation or community control in lieu of being sentenced. See State v. Kendrick, supra, at 1154 and §§
948.01(1), (3) and (4), Fla. Stat. (1991). Thus, we conclude that section
948.06(2) and the case law governing credit for time served are inapplicable....
CopyCited 16 times | Published | Supreme Court of Florida | 1997 WL 348105
...Section
947.146(9) provided that if there were reasonable grounds to believe a releasee had violated the terms and conditions of release, the releasee would be subject to section
947.141; both section
947.146(9) and section
947.141 provided for gain time forfeiture where the release was revoked. Sections
944.28(1) and
948.06(6) were also amended to provide for the forfeiture of gain time upon revocation of Control Release....
...(1989); see also Fla.Admin.Code R. 23-22.013. By the time inmates were offered this conditional benefit, the gain time statutes had been amended to make clear that a revocation of Control Release would result in a forfeiture of basic and incentive gain time. §§
944.28(1),
948.06(6),
947.146(9),
947.141, Fla.Stat....
...NOTES [1] Although we find that Bowles waived his ex post facto argument, we note that at the time of Bowles' offenses in November 1989, all the post-prison supervision programs in effect provided for forfeiture of incentive and basic gain time upon revocation. See §§
944.28(1),
948.06(6), 944.598(5), Fla....
...ch escape or his release under such clemency, conditional release, probation, community control, provisional release, control release, or parole. (Emphasis added). See §
944.28(1)(note 1), Fla. Stat. (1989). As amended by chapter 89-526, section 8, section
948.06(6) provided, in pertinent part: Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary, community control portion of a split sentence, is violated and...
...ation, community control, or control release. This subsection does not deprive the prisoner of his right to gain-time or commutation of time for good conduct, as provided by law, from the date on which he is returned to prison. (Emphasis added). See § 948.06(6)(note 2), Fla....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1997 WL 677991
...ree and nine. As a result, the trial court revoked appellant's probation and imposed two years in prison for each offense to run concurrently. A trial court may revoke probation if a probationer violates his or her probation "in a material respect." § 948.06(3), Fla....
CopyCited 15 times | Published | Supreme Court of Florida | 2000 WL 1675950
...convicted person.'" State v. Gloster,
703 So.2d 1174, 1176 (Fla. 1st DCA 1997) (quoting Thomas v. State,
356 So.2d 846, 847 (Fla. 4th DCA 1978)). However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. See §
948.06(1), Fla....
CopyCited 15 times | Published | Supreme Court of Florida
...a sentence pursuant to an order of probation is deferred, the court has power to impose sentence for violation of the probation after the probation period has expired, even though the violation took place during said period. The governing statute is Section 948.06, Florida Statutes, F.S.A., as follows: "Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation officer may arrest such...
CopyCited 15 times | Published | Florida 3rd District Court of Appeal
...t was committed on May 19, 1978, after Jess's term of probation had already expired on December 12, 1977. Curry v. State,
362 So.2d 36 (Fla. 3d DCA 1978), cert. denied,
372 So.2d 471 (Fla. 1979); Demchak v. State,
351 So.2d 1053 (Fla. 4th DCA 1977); §
948.06(1), Fla....
CopyCited 14 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 541
...If the answer to the foregoing question is in the positive, may the circuit court, upon revocation of a youthful offender's community control program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section 948.06(1), Florida Statutes? We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and we answer both questions in the affirmative....
...[1] At the probation revocation hearing in February 1984, petitioner argued that the Parole and Probation Commission had exclusive jurisdiction over him, pursuant to section 958.10. [2] The circuit court rejected petitioner's argument and found that it had jurisdiction pursuant to sections
958.14 and
948.06(1)....
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 2005 WL 3076606
...er section
92.525, Florida Statutes (2003), but not sworn to before a person authorized to administer oaths. In Jackson v. State,
881 So.2d 666 (Fla. 5th DCA 2004), we held that an affidavit to secure a warrant for violation of probation pursuant to section
948.06(1), Florida Statutes (2002), must be sworn to before a person authorized to administer oaths and that verification under section
92.525 is not appropriate....
...the filing of the affidavit. To explain our views, we begin with a discussion of the oath requirement of the affidavit under Florida and federal law. An Arrest Affidavit Must Be Sworn To Before A Person Authorized To Administer Oaths A. Florida Law Section
948.06(1), Florida Statutes *1018 (2003), [1] governs violation of probation proceedings and provides that "[a]ny committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts ... [and] ... [u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, the probationary period is tolled until the court enters a ruling on the violation." §
948.06(1), Fla. Stat. (2003) (emphasis added). Because section
901.02, Florida Statutes, specifically governs the issuance of arrest warrants, section
948.06(1) requires an affidavit to establish probable cause for the issuance of an arrest warrant for the probation violator....
...r oaths. §
92.525(4)(c), Fla. Stat. (2003); Mieles v. South Miami Hosp.,
659 So.2d 1265 (Fla. 3d DCA 1995); State, Dep't of Highway *1019 Safety & Motor Vehicles v. Padilla,
629 So.2d 180 (Fla. 3d DCA 1993), review denied,
639 So.2d 980 (Fla.1994). Section
948.06(1), on the other hand, does not provide for verification; it specifically requires an affidavit....
...k, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state. §
92.50(1), Fla. Stat. (2003). Hence, in order to secure an arrest warrant under section
948.06(1), the affidavit must be sworn to before a person authorized to administer oaths....
...Nevertheless, the good faith exception clearly applies and the trial judge should not have dismissed the warrant. While we agree with the decision in Jackson that section
92.525 should not apply to affidavits executed to secure an arrest warrant pursuant to section
948.06, the remedy of dismissal applied in Jackson is inappropriate in instances where the good faith exception applies....
...GRIFFIN, J., concurs and concurs specially, with opinion, in which SAWAYA and PALMER, JJ., concur. TORPY, J., concurs in result only, with opinion, in which PLEUS, C.J., ORFINGER and MONACO, JJ., concur. GRIFFIN, J., concurring and concurring specially. Everyone agrees that section 948.06(1), Florida Statutes, requires an "affidavit" to obtain an arrest warrant for a violation of probation....
...The issue as framed by Petitioner here, therefore, is whether the lower court has jurisdiction to proceed on the amended affidavit. The majority implicitly concludes that, because the amended affidavit was filed too late to invoke the statutory tolling provisions of section
948.06(1) (2005), Florida Statutes, the amended affidavit was of no effect. I agree with this conclusion. Section
948.04(2), Florida Statutes (2005), provides that a probationer is entitled to be released from probation upon expiration of his or her term. This period may be extended under the tolling provision of section
948.06(1), "upon the filing of an affidavit alleging a violation of probation......
...iginal affidavit and warrant were legally sufficient. To answer this question it is necessary to determine whether a verified document, in affidavit form, given under penalty of perjury, is a statutorily authorized equivalent of an "affidavit" under section 948.06(1)....
..., written confirmation of facts as true) of a "document," (which by definition includes "affidavits") is required by law or rule, it may be accomplished either by execution before a notary or by signing the statutorily specified declaration. Because section
948.06 requires an "affidavit," which is a "verified document," the alternative verification procedure authorized by section *1030
92.525(1)(b), is a permitted substitute for execution before a notary....
...ore a notary or, in some jurisdictions, without the need for a notary). [6] Here, the requisite declaration was included in the "affidavit;" therefore, the lack of notarization had no affect on its validity. Accord Goines (applying section
92.525 to section
948.06); see also Shearer (Rule 3.987 form of oath requiring notary satisfied by section
92.525 verification); State Dep't of Highway Safety & Motor Vehicles v....
...Wisconsin,
483 U.S. 868,
107 S.Ct. 3164,
97 L.Ed.2d 709 (1987); Grubbs v. State,
373 So.2d 905 (Fla.1979). From a constitutional perspective, a warrant was not required to arrest petitioner. Grubbs,
373 So.2d at 908 (acknowledging constitutional propriety of section
948.06, which authorizes warrantless arrest of probationers for probation violations)....
...ome into play. Here, however, Petitioner does not seek to exclude evidence under the exclusionary rule; therefore, the exception has no place. The issue in this case is simply whether the state properly invoked the tolling provision contained within section
948.06(1), Florida Statutes (2005), by filing an "affidavit." See Stambaugh,
891 So.2d at 1139 (for tolling provisions to apply, state must both file an affidavit and obtain a warrant)....
...ce but to conclude that, because Petitioner's probation expired before an amended affidavit was filed, the lower court lost jurisdiction to proceed. Id. PLEUS, C.J., ORFINGER and MONACO, JJ., concur. NOTES [1] Citation is made to the 2003 version of section 948.06, Florida Statutes, because at the time the warrant was signed in early 2004, the changes to section 948.06 appearing in the 2004 bound volume of Florida Statutes had not yet taken effect....
CopyCited 14 times | Published | Court of Appeals for the Eleventh Circuit | 1997 U.S. App. LEXIS 12448, 1997 WL 251335
...State,
630 So.2d 1090 (Fla.1994). The holding in Willis would not control á plea of nolo contendere followed with an adjudication of guilt, a procedure also permitted the trial court under Florida law. See Parker v. State,
500 So.2d 721 (Fla.2d D.C.A.1987); Fla. Stat. §
948.06 (1)....
...s nolo contendere plea in the two eases argued. The report does show that in both eases, however, he violated probation, probation was revoked, and he was sentenced to two years imprisonment in one case, and fifteen months imprisonment in the other. Section 948.06, Florida Statutes, directs that upon the revocation of probation, the state court must adjudge the defendant guilty of the underlying offense....
CopyCited 14 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 215, 2011 Fla. LEXIS 1245, 2011 WL 2061070
...a probation violation and is not later permitted to order a period of incarceration to exceed the sentence because to do so would violate double jeopardy. See Poore v. State,
531 So.2d 161, 164-65 (Fla.1988), superseded by statute on other grounds, §
948.06(6), Fla....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal
...proceeding or application for revocation of probation for a violation which occurred during the term of probation unless in the meantime, the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, Florida Statutes (1975)....
...icipating in the April 12 hearing on the amended affidavit because, upon the termination of the March 29 hearing in favor of Carpenter, the trial court became divested of jurisdiction and was powerless to entertain the amended April 7 affidavit. See Section 948.06, Florida Statutes (1977) and Coleman v....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 2002 WL 31828714
...period of probation; (4) a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and (5) straight probation. If the defendant violates his probation in alternatives (3), (4) and (5), section 948.06(1) and Pearce permit the sentencing judge to impose any sentence he or she originally might have imposed, with credit for time served and subject to the guidelines recommendation....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 2004 WL 444480
...[1] There was no discussion of credit for time served during the plea colloquy. However, the sentencing order grants 504 days credit for time served. [2] On his return to the Department of Corrections, the Department caused the forfeiture of the gain time that the defendant had earned during his prior incarceration. See § 948.06(7), Fla....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 2003 WL 21697171
...4th DCA 2002); see also Edison v. State,
848 So.2d 498 (Fla. 2d DCA 2003); May v. State,
713 So.2d 1087 (Fla. 2d DCA 1998). But see Render v. State,
742 So.2d 503 (Fla. 3d DCA 1999). We acknowledge that revocation of probation requires adjudication of guilt. See §
948.06(1), Fla....
CopyCited 12 times | Published | Supreme Court of Florida | 1996 WL 627533
...ws relating to credit for unforfeited gain time and by the inadequacy of the disparate sentencing forms used by the sentencing courts throughout the state. In 1989, the legislature enacted two statutes bearing on this subject which remain in effect. Section 948.06(6), Florida Statutes (1989), provided that whenever probation was revoked, an offender "may be deemed to have forfeited" all gain time earned up to the date of his release on probation....
...dit for time served on case/count _____________________________________. (Offenses committed between October 1, 1989, and December 31, 1993) _______ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6)....
CopyCited 12 times | Published | Supreme Court of Florida
...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....
CopyCited 12 times | Published | Supreme Court of Florida | 1994 WL 37925
...In 1989, the legislature eliminated the credit for gain time. The confusion which spawned the controversy in this case was because the legislature in 1989 enacted two laws on the subject in the same session. Chapter 89-531, Laws of Florida, added subsection (6) to section 948.06, Florida Statutes (1987), to read as follows: (6) Notwithstanding any provision of law to the contrary, whenever probation or community control, including the probationary of community control portion of a split sentence, is violated a...
...This subsection does not deprive the prisoner of his right to gain-time or commutation of time for good conduct, as provided by law, from the date on which he is returned to prison. This amendment became effective on October 1, 1989. Chapter 89-526, Laws of Florida, also added a subsection (6) to section 948.06 which contained almost identical wording except that in addition to violations of probation and community control it also referred to the violation of control release....
...time. In another section of chapter 89-531 the legislature did amend section
944.28, Florida Statutes (1987), to authorize the department to declare a forfeiture of probation or community control upon probation revocation. However, the amendment to section
948.06 contained in both chapters 89-526 and 89-531 clearly authorizes the trial court to forfeit gain time....
...NOTES [1] Control release is a mechanism whereby prisoners are released under supervision to control prison population. Because control release was also established in chapter 89-526 and did not become effective until September 1, 1990, it made sense that the amendment to section 948.06(6) pertaining to control release also be made effective on September 1, 1990. [2] In Thomas v. State , the court held that State v. Green controlled its decision because the legislature's enactment of section 948.06(6) did not become effective until September 1, 1990....
...5th DCA 1993), the court made similar statements by referring to chapter 89-526, but there, too, it made no difference because in each instance the original crimes occurred before October 1, 1989. Even this Court made the observation that as of September 1, 1990, the legislature had amended sections
944.28 and
948.06 to add revocation of probation to the list of circumstances suggesting forfeiture of gain time....
CopyCited 12 times | Published | Supreme Court of Florida | 2000 WL 373762
...e date, for that particular sentence. See §
944.275(3)(a), Fla. Stat. (1999). If the trial court finds that the inmate violated his or her probation or community control and that it should be revoked, the inmate is returned to prison. See generally §
948.06, Fla....
...After Poore was issued, the legislature provided for a number of additional types of split sentences, including the probationary split sentence. In this type of sentence, if the defendant violates probation, the trial court may impose any sentence it might have originally imposed. See § 948.06(1), Fla. Stat. (1999). [2] Control Release was added effective September 1, 1990. See ch. 89-526, § 6, at 2662; § 52, at 2690, Laws of Fla. [3] Similar statutory authority is provided for in section 948.06(7), Florida Statutes (1999).
CopyCited 11 times | Published | Florida 2nd District Court of Appeal
...ion order. Bernhardt v. State,
288 So.2d 490 (Fla. 1974). The burden of proof to revoke probation is the greater weight of the evidence. Ivey v. State,
308 So.2d 565 (Fla.2d DCA 1975); Singletary v. State,
290 So.2d 116 (Fla. 4th DCA 1974); see also §
948.06, Fla....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1995 WL 621335
...conditions of probation. See Williams v. State,
578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section
948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 17375, 2011 WL 5169982
...Chapter 958 of the Florida Statutes governs youthful offenders. Specifically, section
958.14 discusses a youthful offender's violation of probation. A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06....
...antive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated. §
958.14, Fla. Stat. (2010). Section
948.06 states, in regards to violations of probation, that "the court may revoke, modify, or continue the probation or community control or place the probationer into community control." §
948.06(2)(e), Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1993 WL 242660
...e them as ordered by the court. Based upon these findings, probation was revoked and appellant was sentenced to serve one year in county jail, with credit for time served. Provisions dealing with the monetary conditions of probation are set forth in section 948.06(4), Florida Statutes (1991), which provides in part: In any hearing in which the failure of a probationer......
...While it is undisputed that during the first five months of his probation, appellant failed to pay any of the monetary conditions of his probation, the record demonstrates that he made bona fide efforts to acquire the resources to do so. Therefore, pursuant to section 948.06(4), it was incumbent upon the trial court to consider a sanction other than imprisonment, with respect to appellant's failure to comply with the monetary conditions of his probation....
CopyCited 11 times | Published | Supreme Court of Florida | 1992 WL 10611
...In other words, the person is not actually sentenced for a violation of probation. Rather, the probation is revoked either in whole or in part and the discretionary one-cell bump-up can be added on based upon the earlier scoresheet. This procedure is the only one authorized by Florida statutes. See § 948.06, Fla....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal
...The testimony about the second attack upon Miss C.R. was admissible because it was relevant to the issue of identity. Weinshenker's third point challenges the sufficiency of the hearing at which his probation was revoked. The requirements for such a hearing are set forth in § 948.06, Fla....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 1923
...By the same token, Bass made no affirmative showing of an inability to make payments during the time he was employed at the Waffle House. This period of employment, from June 8, 1984, until July 23, 1984, coincided with and continued after the June 24, 1984, effective date of Section 948.06(4), which section requires a probationer to demonstrate that he has an inability to make the required payments....
...and imposed the same sentence solely on this ground. Therefore, we remand this cause with directions to the trial court to determine whether Bass has met his burden of an affirmative showing of an inability to make the required payments pursuant to Section 948.06(4), Florida Statutes (Supp....
...If the trial court determines that Bass has shown an inability to pay, there should then be a determination as to whether his probation should be revoked based upon his failure to work at a lawful occupation. Reversed and remanded with directions. ERVIN and SHIVERS, JJ., concur. NOTES [1] § 948.06(4), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2006 WL 2956497
...'s counsel argued that the State failed to prove that he had the ability to pay these costs. Defense counsel also argued that since Shepard was in custody from June to October 2004, his violation was not substantial or willful. The trial court cited section 948.06(5), Florida Statutes, for the rule that in any hearing in which there is an allegation of failure to pay the costs of supervision, it is incumbent upon the probationer to prove by clear and convincing evidence he does not have the resources....
...See Blackshear v. State,
771 So. 2d 1199, 1200 (Fla. 4th DCA 2000). This case demonstrates the tension between the State's burden to show that the probationer willfully, substantially, and deliberately violated a condition of his probation, and the requirement of section
948.06(5), Florida Statutes, that a probationer asserting inability to pay must prove such inability by clear and convincing evidence....
...bationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so. § 948.06(5), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 17366, 36 Fla. L. Weekly Fed. D 2390
...erefore be challenged for the first time on direct appeal.’ ” State v. Calvert,
15 So.3d 946, 949 (Fla. 4th DCA 2009) (citations omitted). The trial court erred by sentencing appellee to a sentence below the minimum mandatory in contravention of section
948.06(2)(b), Florida Statutes....
CopyCited 10 times | Published | Court of Appeals for the Eleventh Circuit | 2016 U.S. App. LEXIS 4684, 2016 WL 1014220
...astillo’s house. In their affidavit, they swore that Castillo unlawfully possessed firearms “in violation of the laws of the State of Florida, to-wit: The laws prohibiting the possession of firearms in violation of terms of probation contrary to section 948.06.” They also stated the details of Kurtz’s search and that the pretrial intervention agreement prohibited Castillo from having a firearm....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1988 WL 70559
...The amended version of §
958.14, Fla. Stat., provides:
958.14 Violation of probation or community control program. A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)....
...ncarcerated. The prior version of §
958.14, Fla. Stat. provided:
958.14 Violation of community control program. A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1). Section
948.06, Fla....
...To assume that the legislature did not intend a change in the law would be to assume it intended to enact a nullity. The language of §
958.14, as amended, relating specifically to resentencing of youthful offenders after violation of probation or community control, should prevail over the preexisting general provisions of §
948.06(1) relating to any violation of probation or community control by anyone....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2003 WL 21672826
...revoking or modifying probation or community control." While there is no corresponding provision for state appeals, Rule 9.140(c)(1)(K) allows the state to appeal orders "imposing a sentence outside the range permitted by the sentencing guidelines." Section 948.06(1), Florida Statutes (2002), states, in pertinent part: The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith...
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2005 WL 156730
...arrant based upon an affidavit alleging a VOP. See Howard v. State,
883 So.2d 879, 880 (Fla. 4th DCA 2004). [1] "The filing of the affidavit and issuance of the warrant toll the probationary period `until the court enters a ruling on the violation.' §
948.06(1), Fla. Stat. (2002)." Id.; see also State v. Boyd,
717 So.2d 524, 526 (Fla.1998). For the February, 2003 VOP violation, an affidavit alleging a VOP violation was filed and an arrest warrant issued, thereby tolling the probationary period under section
948.06(1)....
...However, no warrant issued for the January, 2004 violations. Central to this case is the legal effect of the state's withdrawal or dismissal of the February, 2003 VOP charge for battery on the continued prosecution of the January, 2004 violations. Section 948.06(2)(g), Florida Statutes (2004), provides that if the court dismisses a VOP affidavit, the offender's probation "shall continue as previously imposed, and the offender shall receive credit for all tolled time against his or her term of...
CopyCited 10 times | Published | Florida 2nd District Court of Appeal
...the court imposing a sentence shall allow a defendant credit for all the time he has spent in the county jail before sentence ...", that we must direct the lower court to award the appellant a six months credit for time spent in the county jail as a condition of his probation. Fla. Stat. § 948.06(2) provides: "No part of the time that the defendant is on probation shall be considered as any part of the time that he shall be sentenced to serve." Since the six months period of time spent in jail by appellant was a valid condition of his probation, Suggs v....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 19232
SAWAYA, J. We are confronted in this appeal with the statutory intricacies of revocation of probation proceedings involving an individual, Marcus Leon Barber, who qualifies as a violent felony offender of special concern under section 948.06, Florida Statutes (2015). This statute requires that, if an individual meets the requirements for that designation, the trial court must make written findings as to whether the individual is a danger to the community. See § 948.06(8)(e)l., Fla....
...y offender of special concern but the trial court failed to include written findings regarding whether he was or was not a danger to the community. It is undisputed that Barber qualifies as a violent felony offender of special concern under sections 948.06(8)(b)-(c)....
...Not only did Barber concede in the trial court that he qualifies for that designation, he also makes that concession in his briefs. We note parenthetically that Barber qualifies because of a prior robbery conviction that places him in the category of qualifiers under sections 948.06(8)(b)2. and 948.06(8)(c)6. The trial court held a hearing that resulted in a written order entitled “Order On Defendant’s Motion To Correct Sentencing Errors,” which fails to include written findings under section 948.06(8)(e)....
...Instead, the order contains a tersely worded statement that Barber “meets with qualifications for a Violent Felony Offender of Special Concern as a result of the prior robbery conviction.” The only oral pronouncement the trial court ever made regarding findings under section 948.06(8)(e) was its statement at the conclusion of the hearing that “I do have to make—write up some written findings one way or the other.” Despite the trial court’s acknowledgement that written findings were necessary, none were provided....
...He argues that the proper remedies to correct this error are those previously listed. We disagree. Although this noncompliance is unacceptable, under the circumstances of this ease, Barber’s proposed remedies are also unacceptable. Analysis of the pertinent statutory provisions reveals why we have come to that conclusion. Section 948.06 is an integral part of the Anti-Murder Act (“the Act”) enacted in 2007 as chapter 2007-2, Section 5, Laws of Florida. The moniker conceals a broader purpose that stretches beyond protection against murder, although that is certainly an intended goal. The Act sweeps a wider path by enactment of provisions in section 948.06 that require an individual qualifying as a violent felony offender of special concern to be denied pretrial release when accused of violations of non-monetary conditions of probation....
...er, by those individuals designated violent felony offenders of special concern *383 until their hearings or until those designated violators, who are found to pose a danger to the community, are released from prison. For purposes of our discussion, section 948.06(8) can be analyzed in two parts. The first part deals with provisions that pertain to the requirements that must be met to qualify a person as a violent felony offender of special concern, which include provisions for pretrial detention for those who qualify. See § 948.06(8)(b)-(d), Fla....
...3.790(b)(3)(A). The second part deals with sentencing of individuals who are found by the trial court to be in violation of a non-monetary condition and who are violent felony offenders of special concern found to pose a danger to the community. See § 948.06(8)(e), Fla....
...In Bailey, the court was concerned with the sufficiency of the written findings filed by the trial court to support its conclusion that the defendant qualified as a violent felony offender of special concern who posed a danger to the community under section 948.06(8)(e). Id at 620-21. The court noted that the defendant did not contest the fact that he qualified for designation under sections 948.06(b)-(d). Id. at 619 . The court held that, because the written findings were insufficient for the designation under section 948.06(8)(e), the designation must be stricken. Id. at 620-21 . There is nothing in the opinion indicating that the court meant to strike the designation under sections 948.06(8)(b)-(d)....
...Thus, the sentence legally fits, regardless of Barber’s dangerousness. The State therefore suggests that despite the absence of written findings, nothing more than affirmance is required under these circumstances. While we agree that the sentence imposed would be legal irrespective of the findings made pursuant to section 948.06(8)(e), we reject the argument that written findings are not necessary. The statute specifically provides that “the court shall” make written findings if the court determines that a violent felony offender of special concern has committed a violation of probation. § 948.06(8)(e), Fla....
...See Unruh v. State,
669 So.2d 242, 245 (Fla. 1996) (“As a fundamental rule of statutory interpretation, ‘courts should avoid readings that would render part of a statute meaningless.’ ”). We conclude that the written findings requirement of section
948.06(8)(e) is mandatory, not discretionary....
...stablishes conclusive proof that Barber is not dangerous. The statute provides that there are a number of factors the trial court should consider in making the dangerousness determination, and that decision must be based on one or more of them. *385 § 948.06(8)(e)l.a.-e., Fla. Stat. (2015). The testimony presented by Barber and his mother would fit within the category of “[a]ny other facts the court considers relevant.” § 948.06(8)(e)l.e., Fla....
...Based on our analysis of the pertinent statutory provisions just discussed, we believe that the proper remedy is to reverse the sentencing order and remand for another sentencing hearing with directions that the trial court make the necessary written findings under section 948.06(8)(e) when imposing its sentence....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 1988 WL 139105
...The events which ensued to prevent his departure were not within his control. Where a defendant makes reasonable efforts to comply with the conditions of probation, his failure to so comply may not be wilful. Id. at 41. REVERSED AND REMANDED. SCHEB, A.C.J., and THREADGILL, J., concur. NOTES [1] Section 948.06, Florida Statutes (1984) does not envision a no contest plea to a violation of probation or community control....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal
...ion. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.06, Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2535257
...ence of the accused at trial, or assure the integrity of the judicial process. Even if Mr. Woods had been charged with a violation of probation rather than or in addition to a new offense, detention without bail or other conditions is not automatic. Section 948.06(2)(c), Florida Statutes (2006), and rule 3.790(b) provide courts with the discretionary power to grant or deny bail to individuals who are charged with violating their probation....
...Thornton,
370 So.2d 856 (Fla. 4th DCA 1979). In Glosson v. Solomon,
490 So.2d 94, 95 (Fla. 3d DCA 1986), the Third District specifically held that a trial judge's announced policy of never setting bail on a probation violation charge is in derogation of section
948.06 and therefore error....
CopyCited 9 times | Published | Supreme Court of Florida
...posed would be for a two-year term. The trial judge placed defendant on probation. Defendant violated the conditions and, upon revocation of probation, was sentenced to three years incarceration. The district court of appeal affirmed and referred to section 948.06(1), Florida Statutes (1975), which provides that after probation has been revoked the trial judge can "impose any sentence which it might have originally imposed before placing the probationer on probation." In its opinion the Court said: Accepting appellant's contentions would lead to absurd results....
...The third step in this proceeding occurred when Segarra violated the terms of his probation, which precipitated his resentencing at a revocation proceeding. As will be explained, my disagreement with the majority stems from its characterization of that event. The majority correctly notes that section 948.06(1), Florida Statutes (1977), enables the trial court, upon revocation of probation, to "impose any sentence which it might have originally imposed before placing the probationer on probation." Although this provision generally has been...
...State,
360 So.2d 79, 80 (Fla.3d DCA 1978). [2] See State v. Jones,
327 So.2d 18 (Fla. 1976); Scott v. State,
326 So.2d 165 (Fla.), cert. denied,
429 U.S. 836,
97 S.Ct. 104,
50 L.Ed.2d 103 (1976); Hutchinson v. State,
360 So.2d 1160 (Fla.1st DCA 1978). [3] This principle is implicit within section
948.06(1), Florida Statutes (1977), which limits resentencing upon revocation of probation to any sentence which the trial court could originally impose....
CopyCited 9 times | Published | Supreme Court of Florida | 1992 WL 246494
...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....
CopyCited 9 times | Published | Supreme Court of Florida | 29 Fla. L. Weekly Supp. 626, 2004 Fla. LEXIS 1829, 2004 WL 2360131
...0 control, provisional release, control release, or parole. (Emphasis supplied.) [5] Section
944.28(1) is one of two provisions that authorized forfeiture of gain time upon revocation of probation at the time of the offenses in this case. The other, section
948.06(6), Florida Statutes (1993), provided: Any provision of law to the contrary notwithstanding, whenever probation, community control, or control release, including the probationary [or] community control portion of a split sentence, is v...
...tion of probation for a crime that was originally included in the same guidelines scoresheet as the offense on which the gain time was accrued. Section
944.28(1) does not specify whether the forfeiture penalty applies to split sentences. Its analog, section
948.06(6) (now section
948.06(7), Florida Statutes (2003)), specifies that the forfeiture penalty applies to the revocation of probation or community control imposed as part of a split sentence....
...modified by court order to eliminate the term of incarceration. (b) If the offender does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in s. 948.06....
...That is, that the defendant is reincarcerated and must actually serve the previously suspended term of years in prison.... In [the probationary split] sentence, if the defendant violates probation, the trial court may impose any sentence it might have originally imposed.
760 So.2d at 889 n. 1; see also §
948.06(1)....
...single offense, both the trial court and the DOC have the authority to forfeit gain time. See id. at 892. We had previously explained, in Forbes v. Singletary,
684 So.2d 173, 174 (Fla.1996), that the trial court's authority derives from language in section
948.06(6) providing that upon revocation of the probationary or community control portion of a split sentence, the offender may be deemed to have forfeited all gain time earned up to the date of his release....
...ctually served and for gain time must be granted against a sentence imposed upon revocation of the probationary portion of a split sentence. See id. at 927. The present version is essentially unchanged from the 1993 version applicable to Gibson. [6] Section 948.06(6) was enacted in chapter 89-531, section 13, at 2720, Laws of Florida. [7] Effective May 30, 1997, forfeiture of gain time is mandatory under this provision, which was redesignated section 948.06(7)....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1993 WL 383493
...supreme court recently faced a case where, upon revocation of probation, the newly-imposed sanction exceeded that which was legally available at the original sentencing. It held that the newly-imposed sanction was unlawful. It based its reasoning on section 948.06(1), Florida Statutes (1989), also the controlling statute in the instant case, which mandates that "`if probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and pr...
...When events that bring about a revocation occur, a new chapter is opened and the court ought to be able to mete out any punishment within the limits prescribed for the crime. Johnson v. State,
378 So.2d 335 (Fla. 2d DCA 1980), cert. denied,
402 So.2d 9 (Fla. 1981). Section
948.06(1), Florida Statutes (1989), provides that if probation is revoked, the court may impose any sentence which it might have originally imposed before placing the probationer on probation....
...as correctly decided and should be followed in this case. See also Ramey; Quincutti. But see Kolovrat v. State,
574 So.2d 294 (Fla. 5th DCA 1991). In addition to the opinions mentioned above, several other states have considered a statute similar to section
948.06(1)....
...As the Committee Note properly comments: 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....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1994 WL 603150
...verse the order of revocation and remand this case for reconsideration. Should the trial court elect on remand to revoke Appellant's probation again, the trial court may impose the original sentence or exercise its discretion to change the sentence. § 948.06, Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1549
...Nevertheless, we wish to make it clear that our ruling does not preclude the defendant, in a subsequent enforcement proceeding instituted by reason of the defendant's failure to comply with the restitution requirements of his probation, from defending on the basis of his financial inability to pay. See Sections
948.032 and
948.06(4), Florida Statutes. However, under present law, the burden would be on the defendant to prove such financial inability. Section
948.06(4), Florida Statutes; Bass v....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1991 WL 120801
...arrant; however, a void warrant may not be the basis for a legal arrest and search. State v. Gifford, [
558 So.2d 444 (Fla. 4th DCA 1990)]; Martin v. State,
424 So.2d 994 (Fla. 2d DCA 1983); Pesci v. State,
420 So.2d 380 (Fla. 3d DCA 1982). 4. That F.S.
948.06 authorizes modification of terms and conditions within the probationary period, but does not authorize extension of the period....
CopyCited 9 times | Published | Supreme Court of Florida
...Upon such arrest the parole agreement or probation order shall immediately be temporarily revoked, and such person shall remain in custody until a hearing by the parole and probation commission or the court." must be read in pari materia with Sections 949.11, 949.12, and 948.06, Florida Statutes, F.S.A., which provide the proceedings requisite to revocation of probation....
...rather than as a legislative invasion upon functions exclusively vested in the judiciary, and discharge the appellee from custody. I note, however, that so holding would not preclude revocation of appellee's probation for good cause pursuant to F.S. Section 948.06, F.S.A., provided the minimum due process safeguards of Gagnon were observed....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 450
...n of sentence upon such defendant and shall place him upon probation." (emphasis supplied) When a defendant has been placed on probationary status in lieu of being sentenced and the court determines that he has violated a condition of his probation, section 948.06(1), Florida Statutes, provides that the court shall adjudge the probationer or offender guilty (unless he has previously been adjudged guilty) " and impose any sentence which it might have originally imposed before placing the probationer on probation......
...Stat.) as to one split sentence when, after having served some time under a prior commitment, a defendant violates probation or community service under a split sentence and is recommitted for service of the remainder or balance of that sentence; only one the original sentence is ever imposed. The language in section 948.06(1), Florida Statues, to the effect that after probation or community control is revoked the court shall "impose any sentence which it might have originally imposed" before placing the offender on probation or community control is appli...
...n or community control, the result they reach can only be justified by adhering to that conclusion. The youthful offender statute [7] also expressly provides that violation of probation or community control subjects the defendant to sentencing under section 948.06(1). The prior statute applicable in 1978 and 1983 was similarly worded, but only referred to violation of community control, which was defined as probation. See section 958.05(1) [1978]. Section 948.06(1) states that when probation or community control is revoked, the court may "impose any sentence which it might have originally imposed" without limiting its reach to straight probation or community control sentences....
...Were the sentencing court so limited on revocation of community control for youthful offenders, it would be limited to a six-year term, [8] at best, and the original sentence, if less. That does not comport with the manner in which Chapter 958 has been interpreted and applied, nor with the apparent stated intent of section 948.06(1)....
...an entirely different matter. The explanation in Villery v. Florida Parole and Probation Comm'n,
396 So.2d 1107 (Fla. 1981), that it is only after probation is revoked that a sentence is pronounced and imposed upon the defendant and that then under §
948.06(1), the court may impose any sentence which it might have originally imposed, is correct only when the defendant was originally put on probation in lieu of being sentenced and is not correct when a true split sentence was originally imposed....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2000 WL 1140459
...at the original sentencing, the *867 trial court upon revocation of probation or community control can impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. See § 948.06(1), Fla....
...l constraint at the time he committed the offense, not at the time probation was revoked."). Thus, unlike the revised sentences in Echols and the present case, the probation revocation sentence in Williams could not have been originally imposed. See § 948.06, Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1989 WL 89734
...robation or community control, the court could disregard the defendant's youthful offender classification and impose any sentence it might have originally imposed had it not chosen to place the defendant on probation or community control pursuant to section 948.06(1), Florida Statutes....
...However, in 1985 the statute was amended to provide: Violation of probation or community control program. A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1)....
...hich he was found guilty, whichever is less, with credit for time served while incarcerated. §
958.14, Fla. Stat. (1987) (Italization denotes language added to the statute.). The first sentence of section
958.14 incorporates the procedure stated in section
948.06(1) for revoking the defendant's probation or community control. The second sentence serves to limit the application of section
948.06(1) where a youthful offender is involved by substituting that section's permissible sentence, i.e., any sentence which the court might have originally imposed, for the more limited sentence provided by section
958.14....
...2d DCA 1986) (The case involved a resentence based on the unamended section
958.14. The court stated in dicta that the result would be the same were it to apply the amended statute.) Id. at 162. In Poore, the supreme court approved the Franklin court's reading of section
948.06(1) inasmuch as it held that the statute enables a court to impose a longer period of incarceration upon a probation violation in certain types of sentencing scenarios....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1991 WL 163067
...ON MOTION FOR CERTIFICATION ERVIN, Judge. Appellant, Bruce W. Rock, seeks review of an order revoking his probation. He claims that the trial court erred in revoking probation for violation of a special condition imposed contrary to the dictates of Section 948.06, Florida Statutes (1987), in finding a violation of probation based on uncounseled misdemeanor convictions, and in failing to enter a written order indicating the specific conditions of probation that were violated....
...ffense, and sentenced him to thirty months of incarceration. In regard to appellant's alleged violation of the condition that he complete an alcohol treatment program, it is undisputed that the court failed to comply with the procedures set forth in section 948.06 when it added that condition to appellant's probation....
CopyCited 9 times | Published | Supreme Court of Florida | 1993 WL 102061
...State,
566 So.2d 299, 301 (Fla. 1st DCA 1990)). However, if the reasons for departure existed when the judge initially sentenced the defendant, then the trial court may depart from the presumptive guidelines range and impose a sentence within the statutory limit. Id.; §
948.06(1), Fla. Stat. (1989). Subsection
948.06(1), Florida Statutes (1989), provides that if probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged g...
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 1038
...t just what additional prison term was being ordered. THE COURT: Four additional years. *418 MR. OFFUTT: Four additional years for a total of eight years? THE COURT: Well, yes. The court went on to explain that, upon revocation of community control, section 948.06, Florida Statutes, authorized the entry of any sentence which might have originally been imposed....
...lain why we find them to be lawful. Upon revocation and review of a youthful offender's community control program status, a trial court may treat the offender as though it had never placed him in community control and sentence him in accordance with section
948.06(1), Florida Statutes (1983). Brooks v. State,
478 So.2d 1052 (Fla. 1985). Section
948.06(1) authorizes the trial court to impose any sanction it could have imposed without reference to the youthful offender provisions found in chapter 958....
...Further, nothing in section
958.14, Florida Statutes (1985) which was not in existence at the time appellant was resentenced required the trial court to reclassify appellant as a youthful offender and cap his sentence at six years. Consequently, the trial court was free to sentence appellant in any manner authorized by section
948.06(1)....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1996 WL 148160
...itions. The supreme court found conflict with Holcombe v. State,
553 So.2d 1337 (Fla. 1st DCA 1989), and disapproved the VOP, saying: "The trial court erred in this case by enhancing the terms of Clark's community control without notice and hearing. Section
948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control....
...Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 5606, 2016 WL 1445595
...to revoke or modify probation.’ ” Shenfeld v. State,
14 So.3d 1021, 1023 (Fla. 4th DCA 2009) (alteration in original) (quoting Clark v. State,
402 So.2d 43, 44 (Fla. 4th DCA 1981)). The State argues that, in this case, the tolling provisions of section
948.06(l)(f), Florida Statutes (2012), were effectuated and, therefore, the exception described in Shenfeld is applicable to this case....
...“Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation.” §
948.06(l)(f), Fla....
...avit of violation and the issuance of an arrest warrant are required to toll the probationary period.” Sepulveda v. State,
909 So.2d 568, 570 (Fla. 2d DCA 2005). The statute is very specific on the warrant required: “a warrant under s.901.02.” §
948.06(l)(f) (emphasis added)....
...The warrants clearly list Appellant’s previous crimes only in a descriptive manner, and order that the Sheriffs of Florida arrest Appellant only for the alleged failure-to-pay violations. Those violations, as already noted, were not “crimes.” Section
948.06(l)(f) is clear that a warrant under section
901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here)....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2105219
...s a copy of a warrant issued by the court on February 19, 2003. The trial court revoked Sepulveda's probation and sentenced him on July 22, 2003. Sepulveda filed his rule 3.850 motion on September 29, 2004. Thus the motion was timely filed. Analysis Section 948.06(1), Florida Statutes (2003), provides for retention of jurisdiction of a term of probation that expires during the course of a probation revocation proceeding, stating that "[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 15807, 2010 WL 4103159
...Upon violation of a youthful offender’s supervision, the statute in effect at the time Blacker’s community control was revoked provided as follows: A violation or alleged violation of probation or the terms of a community con *788 trol program shall subject the youthful offender to the provisions of s. 948.06(1)....
...tive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated. §
958.14, Fla. Stat. (2003). 3 Section
948.06(1), Florida Statutes (2003), sets out the manner in which a violation of probation or community control must be charged and proven, and among many things, contains language that allows the court, if it revokes supervision, to “impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.” Nothing in section
948.06 or
958.14 indicates that youthful offender status is revoked upon revocation of probation or community control....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal
...e had been an agreed maximum sentence of five years as a part of plea negotiations accepted and approved by and between defendant, prosecutor and judge. We agree. The state urges us to base our decision in this case on the body of law emanating from Section 948.06, Florida Statutes (1975), which provides in pertinent part that if probation is revoked, the trial court shall "......
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 506
...petitioner's claim that he should be released pending disposition of this charge with or without bail. [2] He claims, and we agree, that the trial judge's announced policy of never setting bail on a probation violation charge [3] is in derogation of Section 948.06(1), Florida Statutes (1985), which permits the trial court to commit one accused of violating the terms and conditions of a probation order "or release him with or without bail to await further hearing... ." The statute in question, Section 948.06(1), has been interpreted as investing the trial court with the discretion to set bail for accused probation violators....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1781412
...88-122, §§ 9, 92, Laws of Fla. The statute was amended again effective October 1, 1989, to allow the Department to forfeit all gain time upon a revocation of probation or community control. See ch. 89-531, §§ 6, 20, Laws of Fla. See also ch. 89-531, § 13 (codified at § 948.06(6), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1995 WL 757902
...riginally imposed, less jail time already served. Summers,
642 So.2d at 743. Summers specified that time spent on probation before revocation may not be credited toward the term of incarceration imposed as a result of the violation. Id. In addition, section
948.06(2), Florida Statutes (1993) provides that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." This statutory reference to a "sentence" means incarceration imposed upon revocation of probation. See id.; §
948.06(1), Fla. Stat. (1993) (stating that if probation or community control is revoked, the court may "impose any sentence which it might have originally imposed"). The supreme court declared that its holding in Waters is "in harmony" with section
948.06(2). Waters,
662 So.2d at 333. Appellant's attempt to credit time on probation and community control against his post revocation incarceration is dissonant with both Waters and section
948.06(1), (2), Florida Statutes (1993)....
...Gonzales unsuccessfully argued in the trial court that he should have received credit for the ten years he already had served on probation. In reversing for resentencing, we noted that Gonzales was "not entitled to credit for the entire ten year period under Florida Statutes Section
948.06(2)." Gonzalez,
658 So.2d at 1092....
CopyCited 8 times | Published | Supreme Court of Florida | 1998 WL 892627
...ense occurred before October 1, 1989, the effective date of the amendment to the gain time forfeiture statutes providing for forfeiture of all gain time upon the revocation of probation, community control or Provisional Release). See §§
944.28(1),
948.06(6), Fla....
...Application of Lynce to Lancaster Three statutes were enacted after the commission of Lancaster's criminal offense which could be asserted as a legal basis to cancel Lancaster's overcrowding gain time. The first two were 1989 amendments to sections
948.06 and
944.28(1). See §
944.28(1);
948.06(6), Fla....
...Section
944.28(1) states that "if the ... probation ... granted to [the prisoner] is revoked, the department may, without notice or hearing, declare a forfeiture of all gain-time earned according to the provisions of law by such prisoner prior to ... his release." (Emphasis added.) [4] Section
948.06(6) states that "whenever probation ......
...is revoked, the offender, by reason of his misconduct, may be deemed to have forfeited all gain-time." (Emphasis added.) [5] It appears that the State believes that neither of those sections includes Provisional Credits or Administrative Gain Time. We believe, however, that sections
944.28(1) and
948.06(6) do provide the State with such authority but they can only be invoked for inmates whose underlying offenses were committed on or after October 1, 1989 (the effective date of the amendments providing for such forfeitures)....
...Prior to that date, there was statutory authority for the forfeiture of gain time upon revocation of parole and clemency, but not probation, community control, or provisional release. See §
944.28(1), Fla. Stat. (1989); ch. 89-531, § 6, at 2717, § 20, at 2721, Laws of Fla.; §
948.06(6), Fla....
...ion, community control, provisional release, or parole. (Emphasis added). As amended, this section went into effect on October 1, 1989. See ch. 89-531, § 2, at 2721, Laws of Fla. [5] Chapter 89-531, section 13, Laws of Florida added subsection 6 to section 948.06, Florida Statutes. That amendment was codified in section 948.06(6), Florida Laws (1989), and provides, in pertinent part: Notwithstanding any provision of law to the contrary, whenever probation or community control, including the probationary or community control portion of a split sentence, is vi...
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 19300, 2009 WL 4723312
...iolation points are assessed for the violation, and for each successive community sanction violation involving a new felony conviction. 2. If the community sanction violation is committed by a violent felony offender of special concern as defined in s. 948.06: a....
...r community control where the violation includes a new felony conviction. §
921.0024(1)(b), Fla. Stat. (2008) (emphasis added). A "violent felony offender of special concern" is defined as follows: (b) For purposes of this section and ss.
903.0351,
948.064, and
921.0024, the term "violent felony offender of special concern" means a person who is on: 1....
...predator under s.
775.21 and has committed a qualifying offense on or after the effective date of this act. (c) For purposes of this section, the term "qualifying offense" means any of the following: . . . . 14. Aggravated assault under s.
784.021. §
948.06(8)(b), (c), Fla....
...Further, Cherington did not qualify as a "violent felony offender of special concern." While Cherington's underlying conviction was for aggravated assault, which is a qualifying offense under the statute, that underlying offense occurred in 2005, before the effective date of the amended section 948.06(8) on October 1, 2007....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2004 WL 1906099
...thorized to administer oaths, such as a notary public. His argument that the document had to be sworn to before an authorized person is based on the requirement that an "affidavit" must be used to allege a violation. This requirement is set forth in section 948.06(1), Florida Statutes (2002), which states: Any committing magistrate may issue a warrant, upon the facts being made known to him or her by affidavit of one having knowledge of such facts, for the arrest of the probationer or offender,...
...ublic within this state." Id. We recognize that the charging document was "verified" pursuant to
92.525, Florida Statutes. However, a charging document "verified" by the probation officer "under penalty of perjury" is not the "affidavit" required by section
948.06(1), Florida Statutes (2002)....
...was under "oath" because it contained the "under penalty of perjury" statement set forth in section
92.525, Florida Statutes. A charging document can be under "oath" within the meaning of section
92.525, and still not qualify as an "affidavit" under section
948.06(1).
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 2014
...o, the court must consider alternative measures of punishment other than imprisonment. Id. at 672,
103 S.Ct. at 2073. The Florida legislature adopted the Supreme Court's standard in chapter 84-337, section 3, Laws of Florida. It is codified in *1204 section
948.06(4), Florida Statutes (1985), and provides: In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2006 WL 2547099
...At the final violation of probation hearing on June 2, 2006, a police officer, who was the state's main witness to the underlying offenses, failed to appear. The state presented no evidence. No testimony was taken from any witness. Scott's attorney moved for dismissal. The court granted the motion and, pursuant to section 948.06(1)(g), Florida Statutes (2005), continued Scott on probation "as previously imposed." On June 5, 2006, the probation officer filed a second violation of probation affidavit founded on the identical conduct that formed the basis for the April 18 affidavit....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1992 WL 235301
...amended version of section
958.14, effective October 1, 1990 ( see chapter 90-208, sections 19 and 22, Laws of Florida), applies to defendant. The amended version of section
958.14 operates to subject a youthful offender to the general provisions of section
948.06(1) beyond the normal six-year cap for such an offender when the offender commits a substantive violation of probation or community control....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 552361
...oints at the original sentencing, the trial court upon revocation of probation or community control can impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. See § 948.06(1), Fla....
...With the two cell bump up for the successive violations of probation and community control, appellant could receive a maximum permitted sentence of five and one-half years in prison after revocation, compared with the maximum penalty of twelve years incarceration currently imposed. See § 948.06(1); Bilyou v....
...tions. Finally, the trial court erred when it forfeited the gain time earned by appellant while serving the underlying split sentences. The exercise of discretion to forfeit gain time earning a defendant early release is afforded a trial court under section 948.06, Florida Statutes, which became effective on October 1, 1989....
...State,
644 So.2d 166 (Fla. 4th DCA 1994); Webb v. State,
630 So.2d 674 (Fla. 4th DCA 1994). The application of State v. Green,
547 So.2d 925 (Fla. 1989), controls disposition of gain time issues arising from offenses committed before the enactment of section
948.06(6)....
...The governing authority allows a defendant who violates probation following incarceration to receive credit against his new sentence, not only for time served, but also for earned gain time. Green,
547 So.2d at 927; Bradley,
631 So.2d at 1097. Thus, the trial court improperly applied section
948.06(6) retroactively and failed to credit appellant with gain time he earned while in prison in addition to time actually served for the 1988 sexual offenses....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...rizes the court to modify the terms and conditions at any time within the probation period. Although Section
948.04, Florida Statutes (1973), authorized the court to extend the period of probation, this provision was deleted by the 1974 legislature. Section
948.06, Florida Statutes (1975), is the only authority for extension of the period of probation....
...Because the court failed to give notice or a hearing to Patrick on the State's charge of violation of probation, the court had no authority to find that he violated the terms and conditions of his probation nor did the court have authority to extend or continue the period of probation. Section 948.06, Florida Statutes (1975)....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...State,
392 So.2d 333 (Fla.2d DCA 1981); Townsend v. State,
378 So.2d 1313 (Fla. 1st DCA 1980), from September 6, 1977, the date when the court first placed Toombs on probation. While time served on probation need not be credited against any prison sentence imposed, §
948.06, Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1992 WL 222173
...t sentence. At the sentencing hearing for the violation of the probation portion of appellant's split sentence, the prosecutor convinced the trial judge to forfeit "any unearned gain-time" attributable to early release from state prison, pursuant to section 948.06(6), Florida Statutes (Supp. 1990). However, at oral argument the state conceded that it had erroneously argued that the statute applied because it became effective before appellant's release from state prison. We note that the legislature enacted section 948.06(6) to counter State v....
...Green,
547 So.2d 925 (Fla. 1989), which held that a prisoner who is released early because of gain-time has completed his or her sentence in full. Sub judice, Green applies because appellant committed the original offense before September 1, 1990, the effective date of section
948.06(6)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1998 WL 746140
...munity control, he had already served five months of his one year community control. Thus, the maximum amount of community control to which the trial court could have sentenced defendant was seven months. See Young v. State,
697 So.2d 75 (Fla.1997); §
948.06(3), Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2004 WL 2330839
...Damien Frye appeals an order revoking his probation. We reverse, because the trial court's order is based on charges contained in an amended affidavit filed after Appellant's probationary period ended. Appellant was sentenced to probation in 2000. Effective July 1, 2001, section 948.06(1), Florida Statutes, was amended to provide in part: *420 Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s....
...ficer on June 13, 2002. Appellant moved to dismiss the second amended affidavit on the ground of lack of jurisdiction. Appellant argued his probationary term expired prior to the filing of the second amended affidavit and that the amended version of section 948.06 was not applicable....
...vit of violation of probation (regarding the May 2000 check charges), reserving his right to appeal the denial of his motion to dismiss. Appellant's underlying offenses were committed on October 29, 1999. Retroactive application of the amendments to section 948.06 enacted in chapter 2001-109 violates constitutional ex post facto principles....
...ut the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham,
450 U.S. 24, 30,
101 S.Ct. 960,
67 L.Ed.2d 17 (1981). The 2001 amendment to section
948.06 clearly disadvantaged Appellant. The amended affidavits of violation of probation would have been deemed untimely under the previous version of section
948.06....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1999 WL 1063031
...I believe the majority first errs in framing the issue in this case as whether the trial court imposed a habitual offender sentence in 1997 when Yashus first violated his probation, which, the majority states, "is a prerequisite to imposition of a habitual offender sentence on a subsequent violation of probation." Section 948.06(1), Florida Statutes (1997), provides that if probation or community control is revoked, the trial court is authorized to impose any sentence which it might have originally imposed....
...I believe that he was, and therefore, when Yashus violated his community control in 1998, the trial court was authorized to impose the ten-year habitual offender sentences which could have been imposed at the original sentencing proceeding in 1992. See § 948.06(1), Fla....
CopyCited 7 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 629, 2009 Fla. LEXIS 1948, 34 Fla. L. Weekly Fed. S 629
...The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served on case/count ____. (Offenses committed between October 1, 1989, and December 31, 1993) *552 ____ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(67)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1995 WL 258911
...In regard to a revocation of community control or probation, section
958.14, Florida Statutes (1987), provides: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)....
...Thus, the state argues that since appellant has not received more than five years of incarceration in Case Nos. 88-518, 88-1146 or 88-2026, his sentences do not violate the youthful offender act. Because a youthful offender is subject to the provisions of section 948.06(1) when he or she violates probation or community control, case law interpreting that statute is applicable. Section 948.06(1), Florida Statutes, provides that adults who violate probation or community control may be sentenced to "any sentence which [the court] might have originally imposed." [3] The law is clear that whenever time is spent in prison or jai...
...1978) (combined terms of incarceration and probation cannot exceed the statutory maximum), should be read to mean only that time already spent on probation may not be credited toward a new sentence of incarceration. Summers,
642 So.2d at 744. In determining that section
948.06, Florida Statutes, did not require that probationary credit be forfeited when a new probationary sentence is imposed, the court said that the statute did not address probationary periods, which were not "sentences." Id....
...[2] Tripp's original guidelines sentence was 4 1/2 years. With a one cell bump-up the maximum sentence upon revocation was 5 1/2 years. Tripp's original sentence of 4 years, when added to the 4 1/2 year sentence upon revocation, totaled 8 1/2 years. [3] Note that section
948.06(2), Florida Statutes, which provides that "[n]o part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve," is not specifically referenced in section
958.14....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 1160
...The state filed a notice of appeal from this decision on the theory it constituted a downward departure from the guidelines. The decision to modify, rather than revoke, Blackman's community control was one of the options available to the trial court under section 948.06, Florida Statutes (1985)....
CopyCited 7 times | Published | Supreme Court of Florida | 1952 Fla. LEXIS 1201
...Pursuant to the above constitutional mandate the Legislature of Florida enacted Chapters 947 and 948, F.S.A. We have from time to time, ruled upon certain provisions of Chapters 947 and 948. See Sellers v. Bridges,
153 Fla. 586,
15 So.2d 293, 148 A.L.R. 1240, and Brill v. State,
159 Fla. 682,
32 So.2d 607. Section
948.06(1), F.S.A., provides: "Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation officer may arrest such probationer witho...
...Section
948.03, F.S.A., prescribes the terms and conditions the Courts of Florida may impose or set out in orders granting probation to defendants in criminal cases. The probationer, in the acceptance of the probation, is bound by the terms and provisions enumerated in the Court's order granting the same. Section
948.06, supra, provides for notice and hearing on the question of revocation of the order of probation....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2017 WL 1202396, 2017 Fla. App. LEXIS 4374
...subsequent probationary term for the same offense if it is necessary to ensure that the
total probationary term does not exceed the statutory maximum for the offense. Young
v. State,
697 So. 2d 75, 77 (Fla. 1997); State v. Summers,
642 So. 2d 742, 744 (Fla.
1994); see also §
948.06(3), Fla....
...With respect to prison credit, upon revocation of the probationary term of a
probationary split sentence, the trial court may impose any sentence the court "might
have originally imposed with credit for time served." Young,
697 So. 2d at 77; see also
§
948.06(2)(b); McCall v....
...atutory maximum, he is
entitled to credit for time previously served in prison. See Hernandez,
889 So. 2d at
914-15. Jacoby contends that he is entitled to a credit of 15.8 months—the prison
sentence that the trial court originally imposed. But section
948.06(7) provides for the
forfeiture of gain time upon revocation of the probationary portion of a split sentence for
the gain time earned up to the date of release on probation....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1281193
...Blackwelder's probation but remand for the trial court to strike references to the violation of condition 27 from the revocation order. Affirmed in part, reversed in part, and remanded with instructions. NORTHCUTT, SILBERMAN, and WALLACE, JJ., Concur. NOTES [1] The State cites section 948.06(5), Florida Statutes (2004), McQuitter v....
...1st DCA 1993), for the proposition that once the State makes an initial showing that the probationer failed to pay court-ordered costs, the burden shifts to the probationer to prove by clear and convincing evidence that he lacked the ability to pay. See also Word v. State,
533 So.2d 893 (Fla. 3d DCA 1988). However, section
948.06(5), despite its plain language, cannot relieve the State of its burden to prove that the violation was willful by proving the probationer's ability to pay....
CopyCited 7 times | Published | District Court, S.D. Florida | 1980 U.S. Dist. LEXIS 14041
...The issue in the instant petition was raised on appeal and found to be without merit. Williams v. State,
378 So.2d 1317 (Fla. 3rd D.C.A.1980). The procedure under which Petitioner was resentenced following the revocation of his probation is set forth in Fla.Stat. §
948.06(1): *154 The court, upon the probationer being brought before it, shall advise him of such charge of violation and if such charge is admitted [or proved] to be true may forthwith revoke, modify or continue probation and, if revoked, shall adjudge the probationer guilty of the offense charged and proven or admitted ....
...The Appellate Division of the Superior Court of New Jersey has also recently addressed the double jeopardy issue raised in this case. In State v. Ryan, 171 N.J.Super. 427, 409 A.2d 821 (1979), the Court considered the New Jersey probation statute, which is quite similar to Fla.Stat. § 948.06(1)....
...1259; 46 Stat. 503; 48 Stat. 256; 53 Stat. 1223-25, formerly 18 U.S.C. § 724-28 (repealed). The current probation statute is 18 U.S.C. § 3651. [2] Interestingly, the statute at issue in Roberts contained essentially the same language as Fla. Stat. § 948.06(1)....
...The federal statute provided that upon revocation of probation, the court "may impose any sentence which might originally have been imposed."
320 U.S. at 114-15 n. 2,
64 S.Ct. at 115 n. 2. This is not to suggest that the Florida Supreme Court was in error in the interpretation of Fla. Stat. §
948.06(1) set forth in Jones....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...Thus, since appellant was "sentenced" when he was originally placed on probation, the state reasons that the three year prison term imposed upon the revocation of probation simply constituted a "resentencing." The state's position also gains some support from section 948.06(1), Florida Statutes (1983), which provides that upon revocation of probation, the court may "impose any sentence which it might have originally imposed before placing the probationer or offender on probation." Nevertheless, we do not accept these arguments....
...d under the guidelines. [1] *960 There had to be a cutoff date after which the guidelines would be applied. This comprehensive legislation which so drastically affects sentencing in Florida necessarily overrides any inconsistency which may remain in section 948.06(1)....
...I conclude that it is not necessary to speculate on the accurate definition of "sentencing," because in enacting sections 921.001 and 921.005, the legislature did not amend or, in any way, alter the provisions of chapter 948, Florida Statutes (1982). Section 948.06(1), which Duggar does not address, specifically provides that when probation is revoked, the court may "impose any sentence which it might have originally imposed before placing the probationer on probation." When appellant was placed on probation, sentencing guidelines were not in effect. The trial judge placed appellant on probation as an alternative to other punishment available to the trial judge at that time. Section 948.06(1) is not only still viable, it is logical....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...neffective, but would cause additional and unwarranted judicial labor in utilizing and reviewing probation. The probationer is protected from inconsequential directions by the statutory mandate that probation be revoked only for material violations. § 948.06(1), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1991 WL 6004
...1st DCA 1990); Schesny v. State,
564 So.2d 640 (Fla. 1st DCA 1990); Buckley v. State,
558 So.2d 534 (Fla. 1st DCA 1990); Betsey v. State,
558 So.2d 202 (Fla. 1st DCA 1990); Glass v. State,
556 So.2d 465 (Fla. 1st DCA 1990). [3] This concept and language was lifted from section
948.06(1) which originally related to the court's authority to impose a sentence after violation of straight probation, a situation in which no sentence has theretofore been imposed on the probationer and, hence, one which poses no former jeo...
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...be released from probation and shall not be liable to sentence for the crime for which probation was allowed. During the period of probation the probationer shall perform the terms and conditions of his probation." Regarding revocation of probation, § 948.06(1), Fla....
...expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S., F.S.A....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...y the State which we find to be of such competent nature that the court was fully justified in revoking probation. We find this gratuitously as the appellant does not question the sufficiency of the evidence upon which the revocation was predicated. Section 948.06, Florida Statutes Annotated, provides as follows: "......
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1997 WL 774761
...d, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation. *1176 A judge may withhold an adjudication of guilt only if the defendant is placed on probation. Fla. R.Crim. P. 3.670. Section 948.06(1), Florida Statutes (1995), addresses the power of a court when it concludes that a defendant has violated the conditions of probation....
...the term of probation imposed "is not a convicted person." Thomas v. State,
356 So.2d 846, 847 (Fla. 4th DCA), cert. denied,
361 So.2d 835 (Fla.1978). However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. §
948.06(1), Fla....
CopyCited 7 times | Published | Supreme Court of Florida | 1995 WL 500387
...encing judge departed downward from the guideline range and sentenced Lamar to 10 years probation. According to Lamar, the downward departure was arrived at through a negotiated plea. [3] In Stafford, Justice Kogan's dissenting opinion reasoned that section 948.06, Florida Statutes (1987), requires that when a person violates probation due to the commission of a new substantive offense, and both the violation of probation and the criminal offense that resulted in the violation are before the sen...
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2004 WL 1799738
...es the burden of proof on the State to bring forth evidence of a probationer's ability to pay in order to demonstrate willfulness. We agree that the burden of proof is on the State, but conclude that the State met that burden and, therefore, affirm. Section 948.06(5) of the Florida Statutes provides as follows: 948.06....
...Only if alternate measures are not adequate to meet the state's interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision. § 948.06(5), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...Thereafter, the court revoked probation and sentenced him to two consecutive five-year prison terms without giving him credit for time spent on probation. Appellant requested that the court correct his sentence by awarding credit. This the court refused to do. While we agree with the trial court that under Section 948.06, Florida Statutes *432 (1977), a defendant is not entitled to credit for time spent on probation, we must also note that a court is required to award credit for any time during which a defendant is incarcerated as a condition of probation....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2014 WL 1393039, 2014 Fla. App. LEXIS 5325
PER CURIAM. We affirm, without discussion, the trial court’s finding that Bhupendra Ravi Singh (Appellant) violated his probation by committing new criminal offenses. However, the trial court failed to make the required written finding pursuant to section 948.06(8)(e)l., Florida Statutes (2012), as to whether Appellant “poses a danger to the community.” We remand for the trial *1137 court to make that determination and to resentence Appellant accordingly....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2004 WL 2173670
...ues based upon an affidavit alleging a violation of probation. State v. Boyd,
717 So.2d 524, 526 (Fla.1998). [1] The filing of the affidavit and issuance of the warrant toll the probationary period "until the court enters a ruling on the violation." §
948.06(1), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 2369
...Gen., Tallahassee, for appellee. WIGGINTON, Judge. We affirm the order revoking appellant's probation. Probation is terminated only by a valid order of revocation or the running of its term, and not by the mere execution of an arrest warrant for violation of probation. See section 948.06, Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2002 WL 31431560
...victed person.'" State v. Gloster,
703 So.2d 1174, 1176 (Fla. 1st DCA 1997) (quoting Thomas v. State,
356 So.2d 846, 847 (Fla. 4th DCA 1978)). [3] However, if probation is revoked, the defendant must be adjudicated guilty of the charged offense. See §
948.06(1), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 5441, 2009 WL 1393506
...Jason Shenfeld timely appeals the trial court's sentencing order imposing a fifteen-year prison sentence after Shenfeld violated the terms of his administrative probation. Shenfeld raises two issues on appeal. First, whether the retroactive application of section 948.06(1)(d) Florida Statutes (2007) violates the prohibition against ex post facto laws. We hold that the retroactive application of section 948.06(1)(d) does not violate ex post facto....
...The issues on appeal require a legal determination based on undisputed facts. Accordingly, the standard of review is de novo. See Trotter v. State,
825 So.2d 362, 365 (Fla.2002). Shenfeld first argues that the trial court erred by retroactively applying section
948.06(1), Florida Statutes (2007), the probation violation tolling statute....
...olation which occurred during the probation period unless, during the term of probation, appropriate steps were taken to revoke or modify probation." Clark v. State,
402 So.2d 43, 44 (Fla. 4th DCA 1981). At the time Shenfeld was placed on probation, section
948.06(1), Florida Statutes provided for the tolling of the probationary period as follows: *1024 Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s....
...court did not have jurisdiction to hear the application for revocation of probation. See Jean-Gilles v. State,
921 So.2d 860, 862 (Fla. 4th DCA 2006). In 2007, prior to the expiration of Shenfeld's term of probation, the Florida Legislature amended section
948.06(1), Florida Statutes to allow for tolling of the probationary period "[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section . . . ." §
948.06(1)(d), Fla....
...t for the new law violations was issued during Shenfeld's probationary period. In addition, an affidavit of violation of probation was filed during Shenfeld's probationary period. The issue is whether retroactive application of the 2007 amendment to section 948.06(1)(d), Florida Statutes (2007) constitutes an ex post facto violation....
...ter the definition of criminal conduct or increase the penalty by which the crime is punishable. Morrow v. State,
914 So.2d 1085, 1086 (Fla. 4th DCA 2005) (citing Gwong v. Singletary,
683 So.2d 109, 112 (Fla.1996)). We consider the 2007 amendment to section
948.06(1), Florida Statutes to be procedural in nature because the purpose and effect of the amendment was to toll the probationary period in order to allow the violation of probation to be heard....
...Accordingly, on remand we direct that Shenfeld be resentenced for his violation of probation to a term of five years. Reversed. WARNER and STEVENSON, JJ., concur. NOTES [1] In Frye v. State , the First District held that retroactive application of the 2001 amendments to section 948.06, Florida Statutes, which provided for the tolling of the probationary period, violated ex post facto because the amended affidavits of violation of probation would have been untimely under the previous version of that statute....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 1992 WL 41469
...Florida Parole and Probation Commission,
396 So.2d 1107 (Fla. 1980). [5] This section catalogues all statutory sentencing alternatives. Johnson v. State,
574 So.2d 222, 224 n. 2 (Fla. 5th DCA 1991). [6] Neither party addresses the applicability of section
948.06(6) which provides that whenever probation is violated and revoked, the offender may be deemed to have forfeited all gain time....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...The trial court accepted the plea negotiations and, without objection, placed the defendant on probation for a period of three years. After probation has been revoked, the trial court can "impose any sentence which it might have originally imposed before placing the probationer on probation." Section 948.06(1), Florida Statutes (1975)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2001 WL 627602
...Appellant first argues that he is entitled to credit on his prison sentence for the time he served on community control. However, the trial court correctly held that credit cannot be awarded for time served on community control. See Young v. State,
697 So.2d 75 (Fla.1997) (section
948.06(2), Florida Statutes, prohibits court from crediting time served on probation or community control toward a sentence of incarceration); Phillips v. State,
651 So.2d 203 (Fla. 5th DCA 1995) (under section
948.06(2), Florida Statutes, when probation or community control is revoked, no part of the time served may be considered as any part of a sentence of incarceration imposed upon revocation)....
CopyCited 6 times | Published | Supreme Court of Florida
...And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (emphasis supplied) In my opinion, this standard is not superseded by Section 948.06, Florida Statutes, which, upon breach of probation, authorizes the trial court to "impose any sentence which it might have originally imposed before placing the probationer on probation." Reading this statute in light of Pearce, supra...
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Further, the trial judge's refusal to revoke probation cannot be equated with an adjudication of the criminal charge, since the trial judge is vested with broad discretion to revoke, modify, or continue probation even if the charge is admitted or proved. Section 948.06, Florida Statutes.
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1987 WL 2635
...The probation was revoked and a two year sentence imposed. Carter argues the court had no jurisdiction to revoke his probation by virtue of the fact that his probation terminated in July 1984 and that his purported agreement to extend it is a nullity. We agree. Section 948.06, Fla....
...provides the sole means by which a probationary term may be modified. Patrick v. State,
336 So.2d 1253 (Fla. 1st DCA 1976). A probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures set forth in §
948.06....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1992 WL 353164
...Green,
547 So.2d 925 (Fla. 1989); Barfield v. State,
599 So.2d 259 (Fla. 4th DCA 1992). All of the offenses for which appellant was sentenced upon the revocation of his probation were committed in January and February of 1989, prior to the effective date of section
948.06(6), Florida Statutes, applied by the trial court, which provides: Any provision of law to the contrary notwithstanding, whenever probation ......
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE POSITIVE, MAY THE CIRCUIT COURT, UPON REVOCATION OF A YOUTHFUL OFFENDER'S COMMUNITY CONTROL PROGRAM STATUS, TREAT THE DEFENDANT AS THOUGH IT HAD NEVER PLACED HIM IN COMMUNITY CONTROL AND SENTENCE HIM IN ACCORDANCE WITH SECTION 948.06(1), FLORIDA STATUTES? SMITH, ZEHMER and BARFIELD, JJ., concur.
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1994 WL 697953
...State,
566 So.2d 299, 301 (Fla. 1st DCA 1990). However, if the reasons for departure existed when the judge initially sentenced the defendant, then the trial court may depart from the presumptive guidelines range and impose a sentence within the statutory limit. Id.; §
948.06(1), Fla. Stat. (1989). Subsection
948.06(1), Florida Statutes (1989), provides that *185 if probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjud...
...The statutory authority for sentencing after revocation of probation assumes there has been no previous sentence of imprisonment, when it provides: "If ... probation ... is revoked, the court shall ... impose any sentence which it might have originally imposed before placing the probationer ... on probation... ." § 948.06(1), Fla....
...The court held in Watts that convicts sentenced to probationary split sentences under the Youthful Offender Act were entitled, at sentencing after revocation of probation, to the benefit of the Act's six-year maximum, despite the State's contention that "the court was free to resentence the defendants under section
948.06(1) to any sentence that the court might have originally imposed." Watts,
558 So.2d at 996....
...conditions of probation. See Williams v. State,
578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section
948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v. State,
579 So.2d 109, 110 (Fla. 1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; §
948.06(1), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1998 WL 1157190
...This is not a legal basis for allowing Mearns to withdraw his plea, since after revoking Mearns' probation the court was free to impose any sentence it may have originally imposed before placing him on probation. We affirm the denial of the motion to withdraw pleas. See § 948.06(1), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2005 WL 2016250
...State,
867 So.2d 645 (Fla. 3d DCA 2004). The supreme court held that "a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control." Cregan,
908 So.2d at 391. See §
948.06(3), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2005 WL 991691
...eclare that I have read the foregoing affidavit and the facts stated in it are true." The charging document was not sworn to before a person authorized to administer oaths. In Jackson v. State,
881 So.2d 666 (Fla. 5th DCA 2004), this Court held that section
948.06(1)(b), Florida Statutes, requires that an affidavit form the basis for a charge of violation of probation and that a defect such as that involved in the instant case, where raised by motion to dismiss, constitutes reversible error....
...State,
855 So.2d 1260 (Fla. 4th DCA 2003). [2] The error here is not in the substance of the charging document which alleges specific conduct constituting a violation of probation. Rather, the error involves a failure to comport with a provision of section
948.06(1), Florida Statutes....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1993 WL 113342
...First of all, we agree that the trial court erred in limiting the credit received to 497 days. In this case, defendant, with credit for time served, had completed his original five-year sentence. Because the offense for which he was convicted occurred prior to the effective date of section 948.06(6), Florida Statutes, he is entitled to credit to the full *358 five years regardless of the time he was actually incarcerated....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1994 WL 478545
...ion. Reversed and remanded with directions. RYDER, A.C.J., and PARKER, J., concur. NOTES [1] Mr. Johnson did not expressly raise this factual issue as a basis for relief in his motion to correct sentence. [2] For cases prior to the effective date of section 948.06(6), Florida Statutes (1989), there appear to be two correct methods of imposing the remaining sentence after a violation of probation on a true split sentence....
...State,
559 So.2d 1121 (Fla.), cert. denied,
498 U.S. 834,
111 S.Ct. 102,
112 L.Ed.2d 73 (1990). In this case, this alternative would result in a six-year sentence with prison credit for three years. Because this case involves an offense occurring prior to the enactment of section
948.06(6), we do not need to determine the effect of that statute on a true split sentence....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2002 WL 2008110
...[2] Based on the substantial assistance agreement, the sentence imposed by the trial court was appropriate. II. Probation Violation The trial court may impose any sentence which it might have originally imposed before placing the defendant on probation. See § 948.06(1) Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...Florida that he was entitled to a hearing within ten days of his return. Section 949.11, Florida Statutes, provides that any person whose parole or probation is *1125 revoked pursuant to 949.10 shall be given a hearing pursuant to section
947.23 or section
948.06 within ten days....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1997 WL 570460
...1st DCA 1957), this court said "that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S." At the time Ard was written, "the processes ... for revocation or modification of probation pursuant to Section 948.06, F.S." could be commenced either by arrest without a warrant, or by arrest pursuant to a warrant issued by a committing magistrate after review of an affidavit stating facts sufficient to create a reasonable belief that a violation had occurred. § 948.06(1), *297 Fla. Stat. (1957). That portion of section 948.06 remains substantively unchanged. § 948.06(1), Fla....
...In order for a trial court to acquire jurisdiction for the purpose of revoking of probation or community control, all that is required is that the "processes of the court" be set in motion for the revocation prior to the expiration of the probationary period. See section 948.06(1), Florida Statutes; State ex rel....
...Fryson and Wimberly call for affirmance of the revocation orders. To allow appellant to escape his prison sentence imposed upon revocation of community control upon a technical requirement that the arrest warrant had to be placed in the hands of the sheriff would defeat the purpose of section 948.06(1), and would undermine the holdings in Fryson and Wimberly....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1997 WL 606498
...The supreme court recognized the potential abuse of procedural due process inherent in such an arrangement and based *1074 its assessment of trial court error on the absence of notice and hearing to the probationer. The supreme court found support in its decision from section 948.06, Florida Statutes (1987), which provides the statutory authority for modifying conditions of supervision following a finding by the trial court of a violation....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...The appellant maintains that the strict requirements of guilty pleas in original criminal proceedings which were established in Boykin v. Alabama, 1969,
395 U.S. 238,
89 S.Ct. 1709,
23 L.Ed.2d 274, must be carried over to a proceeding involving the revocation of probation. We disagree. Section
948.06, Florida Statutes, F.S.A., states that at a hearing on revocation of probation, the court shall advise the probationer of the charge of violation....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4664270
...ationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so.' § 948.06(5), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 15184
...ation or community control and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation.” §
948.06(1)(f), Fla....
...vit of violation and the issuance of an arrest warrant are required to toll the probationary period.” Sepulveda v. State,
909 So.2d 568, 570 (Fla. 2d DCA 2005). The statute is very specific on the warrant required: “a warrant under s.
901.02.” §
948.06(1)(f) (emphasis added)....
...The warrants clearly list [the defendant’s] previous crimes only in a descriptive manner, and order that the Sheriffs of Florida arrest [the defendant] only for the alleged failure-to-pay violations. Those violations, as already noted, were not “crimes.” Section
948.06(1)© is clear that a warrant under section
901.02 is required in order for the probationary period to be tolled (except when one of the other two alternatives are applicable, as is not the case here)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 17122
...ssues by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion. We affirm on every argument, except one. The State properly concedes that the court failed to make written findings as to how the defendant posed a danger to the community. See § 948.06(8)(e)l, Fla....
...[mjake written findings as to whether or not the violent felony offender of special concern poses a danger to the community ....”) (emphasis added). However, where a court orally pronounces a reason, consistent with one or more of the factors listed under section 948.06(8)(e)l, for its finding that the defendant, as a violent felony offender of special concern, poses a danger to the community, but fails to provide written reasons for its finding, the proper remedy is to affirm the revocation of the de...
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1995 WL 637509
...v. State,
284 So.2d 236 (Fla. 2d DCA 1973). After noting that the strict requirements of guilty pleas in original criminal proceedings were established in Boykin v. Alabama,
395 U.S. 238,
89 S.Ct. 1709,
23 L.Ed.2d 274 (1969), Judge Grimes explained: Section
948.06, Florida Statutes, F.S.A., states that at a hearing on revocation of probation, the court shall advise the probationer of the charge of violation....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1994 WL 169341
...The issue in this case is whether, following the revocation of a probationary portion of a split sentence, the sentencing court may properly delegate to the Department of Corrections the ministerial duty of calculating that portion of the previously awarded gain time forfeited pursuant to section
944.28(1) and
948.06(6), Florida Statutes (1993)....
...ate numbers to apply to the awarded jail credit. Nor did it commit error in directing the Department to credit against the new sentence any gain time that it found unforfeited. The judgment is consistent with section
944.28(1); it is consistent with section
948.06(6); it is consistent with the statewide sentencing form (Florida Rules of Criminal Procedure 3.986); and it is consistent with section
921.0017 (although this section was not applicable at the time of the present sentence)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1998 WL 107309
...of two years' community control, the court would have reversed and remanded for resentencing. At that resentencing, the trial court could have imposed "any sentence which it might have originally imposed" before placing Dupree on community control. § 948.06(1), Fla....
...incarceration. As the circuit court explained in its order, Dupree was sentenced to a term of imprisonment without any period of community control or probation and, therefore, he is not entitled to credit for time he spent on community control. See § 948.06(1), Fla....
...lty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probationer or the offender into community control."); § 948.06(2), Fla....
...State,
697 So.2d 75, 77 (Fla.1997) ("[I]f the trial judge chooses to impose a sentence of incarceration, credit cannot be given for time spent on probation.... Likewise, credit cannot be given for time served on community control.... This is because section
948.06(2), prohibits a court from crediting probation or community control toward a sentence of incarceration." (citations and footnotes omitted))....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2007 WL 1789256
...Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee. THOMPSON, J. Jimmy Lee Jones appeals the revocation of his probation arguing the State did not meet the affidavit and arrest warrant requirements of section 948.06(1), Florida Statutes (2003), to toll the probationary period....
...is probation by committing the home invasion robbery. Jones timely filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and raised the same objection concerning the tolling of the probation term under section 948.06(1)....
...s been violated, and the proper standard of review is whether the lower court abused its discretion. Johnson v. State,
880 So.2d 749, 750 (Fla. 5th DCA 2004). The remaining issue before this court is whether the State met the tolling requirements of section
948.06(1) when no arrest warrant issued and the only affidavit filed is a notarized arrest affidavit/first appearance form stamped Special Handling Violation of Probation....
...Florida,
894 So.2d 941, 945 (Fla. 2005). Jones argues that the court lacked jurisdiction to consider the violation of probation because both the filing of a violation affidavit and the issuance of an arrest warrant are required to toll the probationary period under section
948.06(1)....
...The record does not include an affidavit of violation of probation filed during the one-year term of probation that commenced 10 January 2003. He contends that the June 2004 filing of an amended affidavit to allege the 2003 and 2004 new law violations did not resurrect the court's jurisdiction. Section 948.06(1) states in pertinent part: Upon the filing of an affidavit alleging a violation of probation ....
...We reject the State's argument that the issuance of an arrest warrant was not required here because the law enforcement officer knew of Jones's probationary status and Jones had already been arrested for robbery. Citing Grubbs v. State,
373 So.2d 905, 908 (Fla.1979), the State urges that section
948.06 expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court that entered the probation order whenever there are reasonable grounds to believe the probationer has violated his probation....
...[2] Accordingly, we reverse the order of revocation and probation. TORPY, J., concurs. ORFINGER, J., concurs specially, with opinion. ORFINGER, J., concurring specially with opinion. I agree with the Court's analysis of the issues presented and the result reached because of the wording of section 948.06(1), Florida Statutes (2003)....
...rant would have been redundant, since Mr. Jones had already been arrested for the violation. However, the statute is clear on what is required to toll the running of the probationary period and that was not done here. I urge the Legislature to amend section 948.06(1) to delete the requirement of an arrest warrant if an authorized officer makes a lawful arrest of an alleged probation violator and files an affidavit to that effect within the probationary period....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1398541
...Rather, an arrest warrant must ensue out of the violations alleged in the affidavit. State v. Boyd,
717 So.2d 524, 525 (Fla.1998)(execution of an arrest warrant by the appropriate judicial official and delivery to sheriff required to "set in motion" a revocation of probation). See also §
948.06(1)(d), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21748913
...verse witnesses...; (e) a `neutral and detached' hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking.... Gagnon v. Scarpelli,
411 U.S. 778, 786,
93 S.Ct. 1756,
36 L.Ed.2d 656 (1973). Section
948.06, Florida Statutes (2001), implements these rights and requires that a court conduct a probation revocation hearing if the probationer disputes the charges....
...At the hearing, the State must prove the violation by a preponderance of the evidence. Stevens v. State,
823 So.2d 319, 320 (Fla. 2d DCA 2002). Section
948.01(13), which authorizes drug offender probation, specifically states that such probation is "subject to revocation of probation as provided in s.
948.06." Obviously, the procedure employed in this case failed to satisfy the statutory and constitutional requirements....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 1742
...revocation period of community control or probation to ensure that the defendant's total sentence does not exceed the statutory maximum, although time served on community control may not be applied to a post-revocation sentence of incarceration. See § 948.06(3), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1999 WL 518728
...time earned"),
944.275(5)("When a prisoner is found guilty of an infraction of the laws of this state or the rules of the department, gain time may be forfeited according to law"),
947.146(12)(violation of control release results in forfeiture), and
948.06(6)(automatic forfeiture when terms of probation, community control, or control release are violated)....
...of a true split sentence. As the supreme court has recognized, for offenses committed between October 1, 1989, and December 31, 1993, the sentencing judge has the discretion whether to "credit" gain time he had previously earned while in prison. See s. 948.06(6), Fla....
...of probation. See Tripp v. State,
622 So.2d 941, 943 (Fla.1993). Therefore, a credit for time spent in prison must be interpreted to mean only time actually served in prison. [5] The problem presented by this case has been eliminated by revisions to section
948.06(6)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2004 WL 1485848
...tence was imposed. We reject this argument because, when a defendant is sentenced for violation of probation, the trial court may impose any sentence that could have originally been imposed without violating the proscription against double jeopardy. § 948.06(1), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 10462, 2010 WL 2787540
...Alcantara appeals from an order revoking his probation and sentencing him as a "violent felony offender of special concern who poses a danger to the community." Alcantara contested the State's reliance on an alleged 1992 conviction in Rhode Island for breaking and entering as the "qualifying offense" under section 948.06(8)(c), Florida Statutes (2008)....
...Alcantara admitted to violating his probation by changing his residence and leaving the county without his probation officer's permission. The State sought to have him sentenced as a violent felony offender of special concern who posed a danger to the community pursuant to section 948.06(8)....
...That statute provides, in relevant part, that a violent felony offender of special concern is a person who is on: 2) Felony probation or community control for any offense committed on or after the effective date of this act and has previously been convicted of a qualifying event. §
948.06(8)(b)(2), Fla. Stat. (2008). Among the qualifying offenses listed by the statute is a burglary offense or attempted burglary offense that is either a first degree or second degree felony under section
810.02(2) or (3). §
948.06(8)(c)(12). An offense committed in another jurisdiction constitutes a qualifying offense if that offense would be a qualifying offense if committed in Florida. §
948.06(8)(c)(19)....
...If a violent felony offender of special concern is found to have violated his probation or community control other than by failure to pay costs, fines or restitution, a trial court must determine whether that defendant "poses a danger to the community." § 948.06(8)(e)1. [1] If the court finds that a *537 violent felony offender of special concern poses a danger to the community, the court is required to revoke probation and sentence a defendant up to the statutory maximum, or longer if permitted by law. § 948.06(8)(e)(2)(a); see also Fla....
...3.790(b)(3)(C). If the court finds that the violent felony offender of special concern does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or place the probationer into community control. § 948.06(8)(e)(2)(b); see also Fla....
...Furthermore, the State failed to present evidence that the "breaking and entering" offense allegedly committed by Alcantara in Rhode Island would constitute a burglary or attempted burglary offense that would be either a first or second degree felony under section
810.02(2) or (3) if committed in Florida. See §
948.06(8)(c)(19)....
...supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations. d. The weight of the evidence against the offender. e. Any other facts the court considers relevant. § 948.06(8)(e)(1)(a-e), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...The court *334 could have originally placed appellant on probation for consecutive five year terms but chose to impose the two concurrently. Now that appellant has violated his probation, there is nothing to prevent the court from imposing a sentence which would have been originally authorized. § 948.06(1), Fla....
CopyCited 5 times | Published | Supreme Court of Florida | 1993 WL 25104
...Only if alternate measures are not adequate to meet the state's interests in punishment and deterrence may the court imprison a probationer or offender in community control who has demonstrated sufficient bona fide efforts to pay restitution or the cost of supervision. § 948.06(4), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 465545
...No affidavit regarding case number 05-22136 appears in our record. In a probation revocation proceeding a trial court need not comply with Florida Rule of Criminal Procedure 3.172, which governs the acceptance of a guilty or nolo contendere plea; however, section
948.06(2), Florida Statutes (2006), requires that the trial court advise the probationer of the alleged violation. See Edwards v. State,
721 So.2d 744, 745 (Fla. 4th DCA 1998). If the probationer does not admit to the violation and the charged violation is not dismissed, the court must give the probationer an opportunity to be fully heard. §
948.06(2)(d)....
...equences of a guilty plea, the right to counsel, and the right to a final hearing on violation of probation, at which time a probationer has the `opportunity to be fully heard on his or her behalf in person or by counsel.'"
721 So.2d at 745 (quoting §
948.06, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2005 WL 3299767
...original scoresheet). This rule is consistent with the probation statute which provides that following a revocation of probation the court may "impose any sentence which it might have originally imposed before placing the probationer on probation." § 948.06(1), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...ram. Clem v. State,
462 So.2d 1134 (Fla. 4th DCA 1984) [ Clem II]. *944 We think the language of section 958.10, while somewhat unclear, does lend support to the decision we reached in Lollis. However, it now appears to us that a recent amendment to section
948.06 explicitly controls the present case and distinguishes our opinion in Lollis. Section
958.14, Florida Statutes (1983) provides: A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1). Chapter 83-131, section 20, Laws of Florida, amended section
948.06(1) to encompass community control violations in addition to probation violations....
...control. (Emphasis supplied.) This section specifically vests jurisdiction in "the court granting such probation or community control." In Lollis, the defendant was charged with a violation of probation before the effective date of the amendment to section 948.06(1). Here, the petitioner was charged with violating his probation after the effective date of the amendment. Thus; Lollis is distinguishable, and section 948.06(1) clearly governs the disposition of the present case....
...tion or, with respect to any such felony, into community control upon completion of any specified period of such sentence. Section
948.01(11) states that "[p]rocedures governing violations of community control shall be the same as those described in s.
948.06 with respect to probation." Thus, petitioner is incorrect in claiming that he would be under the jurisdiction of the Parole and Probation Commission....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 673
...the offender or transfer the defendant to probation supervision. See Section
948.01(7). We also note that where a probationer has violated the conditions of probation, the court may, instead of revoking probation, place him in community control. See Section
948.06....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1989 WL 152162
...itions of his modified probation. He contends that the trial court erred in enhancing the conditions of his original probation and modifying its terms based on an agreement between the probationer and his probation officer in lieu of compliance with § 948.06, Fla....
...y, violation of right to counsel, and violation of due process. After a hearing, the court denied the motion and this appeal followed. Holcombe argues the trial court erred in enhancing the conditions of his original probation without complying with § 948.06, Fla....
...modified and enhanced Holcombe's original probation order because he admitted in writing that he violated his probation, waived his right to notice and hearing on the violation, and agreed to the modification and enhancement of the probation order. Section 948.06(1) provides in pertinent part: (1) Whenever within the period of probation or community control there is reasonable ground to believe that a probationer or offender in community control has violated his probation or community control i...
...n person or by counsel. After such hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control... . In Carter v. State,
516 So.2d 331, 332 (Fla. 1st DCA 1987) this court held: Section
948.06, Fla. Stat., provides the sole means by which a probationary term may be modified... . A probationer cannot agree with his probation officer to an extension in lieu of compliance with the procedures set forth in §
948.06....
...the term of probation... . *1340 even a judge cannot extend the probationary term without a hearing, with due process, and having the accused violator before the court. In Patrick v. State,
336 So.2d 1253, 1254 (Fla. 1st DCA 1976), this court held: Section
948.06, Florida Statutes ......
...eements to modify probation or community control and to waive notice of hearing. In order to conserve judicial time on both the trial and appellate level, we certify to the supreme court, as a question of great public importance, the following: DOES § 948.06, FLA....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2006 WL 2433182
...The judge found the appellant guilty of violating conditions 2 and 10, for failing to pay the cost of supervision and court costs. The trial judge made no finding that the appellant had the ability to pay either court costs or the "cost of supervision." § 948.06(5), Fla....
...court held a full evidentiary hearing and found that the appellant failed to pay both his court costs and costs of supervision, "[t]he court did not, however, find either orally or in its written order that appellant had the ability to pay"). Under section 948.06(5), Florida Statutes (2005), the burden is on the probationer to prove his inability to pay, once nonpayment has been established. § 948.06(5), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1995 WL 497333
...We interpret the trial court's order as correctly allowing Smith credit for time actually served as well as earned gain time because the offense occurred prior to October 1, 1989. See State v. Green,
547 So.2d 925 (Fla. 1989); Harrington v. State,
609 So.2d 712 (Fla. 4th DCA 1992); §
948.06(6), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2001 WL 427390
...If the appellate court feels otherwise, I would think that he would be amenable and that the proper sentence would be, since he is going to prison on this prior charge, that he have community control, plus five years probation, and seek counseling. Section 948.06(1), Florida Statutes (1999) provides in part that, "the court [upon a violation of probation], ......
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2005 WL 924293
...eld on both charges. Gethers,
838 So.2d at 507. As this court noted in Saunders v. State,
837 So.2d 433 (Fla. 2d DCA 2002), a prisoner who has actually been arrested for a violation of probation is entitled to a hearing "as soon as practicable." See §
948.06(4), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2002 WL 31126909
...State,
447 So.2d 381 (Fla. 3d DCA 1984); Irby v. State,
427 So.2d 367 (Fla. 2d DCA 1983). Nor does the probation statute afford any relief to a prisoner against whom a detainer has been lodged but who has not been arrested for the violation of probation. See §
948.06(4), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1991 WL 188313
...cal in nature and elected to continue the defendant on probation. The State appeals arguing that this amounts to a downward departure sentence for which the trial court was required to provide contemporaneous written reasons. We disagree and affirm. Section 948.06(1), Florida Statutes, relating to violation of probation, in effect provides that when a probationer is brought before the court on the accusation that he violated probation, and the probationer admits the charge of violation to be true, the court may revoke, modify or continue the probation....
...ithin the meaning of that language in the sentencing guidelines rule, although if the probation is finally revoked, the defendant then comes "before the court for sentencing" and the guidelines may apply. The trial court's statutory discretion under section 948.06(1) is such that after stating that probation was revoked, the trial court could reinstate probation without it constituting a departure sentence under the guidelines requiring contemporaneous written reasons....
...The new sentencing judge found that the violations were all of a technical nature and reinstated his probation on the original terms. Oral reasons for departure were given at the hearing but written reason were not prepared until 11 days later. The majority correctly cite section 948.06(1) as giving the court the authority, after an admission of violation, to "revoke, modify or continue" probation, and, after a finding that a violation has occurred, to "revoke, modify or continue" the probation. These options, however, are in the alternative. And the court, in this case, revoked probation. Once probation is revoked then section 948.06(1) provides (whether there is a plea or finding of guilt): If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 2058
...It is also apparent that neither of these documents has ever been filed in the circuit court. With respect to the last four violations, the trial court cannot revoke appellant's probation for conduct not charged by affidavit of probation violation and warrant. See § 948.06(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 2319009
...t have no other adequate remedy. Huffman v. State,
813 So.2d 10, 11 (Fla.2000); Milanick v. Town of Beverly Beach,
820 So.2d 317, 318 (Fla. 5th DCA 2001). Chapman contends that respondent has a duty to execute the arrest warrant against him based on section
948.06(1), Florida Statutes, which states that any magistrate may issue a warrant for the arrest of a probationer "returnable forthwith." However, the arrest warrant in this case does not contain the word "forthwith." In fact, Chapman acknowl...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2654520
...his claim in an evidentiary hearing. If the postconviction court determines that Gilbert's counsel was ineffective and that he was prejudiced thereby, then it should permit Gilbert to withdraw his plea and proceed to a revocation hearing pursuant to section 948.06(2), Florida Statutes (2003)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 11 Fla. L. Weekly 2205
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2004 WL 2315112
...2d DCA 1999). In Clark, the supreme court held that before the probationary term can be extended, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06, Florida Statutes....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1997 WL 640730
...taken to revoke or modify probation. Clark v. State,
402 So.2d 43, 44 (Fla. 4th DCA 1981). "Appropriate steps" under Clark means that the processes of the court must have been set in motion for revocation or modification of the probation pursuant to section
948.06, Florida Statutes (1995)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1999 WL 33435975
...I believe the majority first errs in framing the issue in this case as whether the trial court imposed a habitual offender sentence in 1997 when Yashus first violated his probation, which, the majority states, "is a prerequisite to imposition of a habitual offender sentence on a subsequent violation of probation." Section 948.06(1), Florida Statutes (1997), provides that if probation or community control is revoked, the trial court is authorized to impose any sentence which it might have originally imposed....
...I believe that he was, and therefore, when Yashus violated his community control in 1998, the trial court was authorized to impose the ten-year habitual offender sentences which could have been imposed at the original sentencing proceeding in 1992. See § 948.06(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 2579
...State,
462 So.2d 1134 (Fla. 4th DCA 1984): May the circuit court, upon revocation of a youthful offender's community control program status, treat the defendant as though it had never placed him in community control and sentence him in accordance with section
948.06(1), Florida Statutes? In Clem it was the position of the state that the trial court, upon a revocation of community control, has the authority, pursuant to sections
958.14 and
948.06(1), Florida Statutes, [1] to "impose whatever sentence it might originally have imposed without regard to the youthful offender act." (Emphasis added.) See Clem at 1137....
...1984), held that such a sentence was limited to four years. The Florida Supreme Court has now answered the certified question in the affirmative, thereby agreeing with the state's argument in Clem, which is also the state's argument in the instant appeal i.e., section 948.06(1) authorizes the trial court to impose any sentence it could have imposed without reference to the youthful offender provisions....
...[3] In the instant case, the six-year sentence imposed by the trial court is within the statutory maximum for the crime of burglary of a dwelling. The applicability of any guideline maximum has not been raised on this appeal. AFFIRMED. ORFINGER and COWART, JJ., concur. NOTES [1] The last sentence of section 948.06(1) states: If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. [2] It is clear from the context of the Clem case that the phrase in the certified question "in accordance with section 948.06(1), Florida Statutes" was contemplated by that court to mean "without regard to the youthful offender act." [3] Brooks, of course, supersedes prior district court decisions which either hold or imply that, upon revocation of his commun...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 1171
...Although he can receive six years for each charge, they must be concurrent in order to comply with the intention of the Youthful Offender Act. Sentence REVERSED and REMANDED. SHARP, and COWART, JJ., concur. NOTES [1] Chapter 83-131, § 20, Laws of Florida, effective October 1, 1983, amended § 948.06(1), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...usly served as part of the sentence; but no credit is given for time spent on probation. Id. at 383. While this holding in Holmes appears to be an interpretation of section
948.01(4), the same is true as to youthful offenders subject to the terms of section
948.06(1), Florida Statutes (1983)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2006 WL 546644
...We decline to accept the state's position and remand this case for a determination of whether an affidavit was filed prior to the expiration of Jean-Gilles's probationary period. The applicable statute explicitly requires the filing of an affidavit and a warrant. Section 948.06, Florida Statutes (2003), reads as follows: Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s....
...Notwithstanding the tolling of probation as provided in this subsection, the court shall retain jurisdiction over the offender for any violation of the conditions of probation or community control that is alleged to have occurred during the tolling period. § 948.06(1), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1989 WL 27908
...We disagree because it is now established that, upon a violation of probation, the trial court may "impose any sentence it originally might have imposed, with credit for time served and subject to the guidelines recommendation." Poore v. State,
531 So.2d 161, 164 (Fla. 1988); §
948.06(1), (2), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1992 WL 123502
...Furthermore, on or about March 1, 1991, the probationer violated his probation by Obtaining A Forged Instrument, to-wit: False Identification." "IT, THEREFORE, IS ORDERED AND ADJUDGED that the probation of the aforesaid defendant ought to be revoked and it is hereby revoked in accordance with Section 948.06 Florida Statutes, and the said defendant is hereby ordered to remain in the custody of this Court for the imposition of sentence in accordance with the provisions of law." *1387 Based thereon the trial court stated it would, over defense objection, sentence the defendant to twenty-two years in state prison....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1989 WL 67443
...period of confinement, none of which is suspended, followed by a period of probation").
531 So.2d at 164. I agree to affirmance in this case only because we must follow the directive in Poore that upon violation of probation under this alternative, "section
948.06(1) and Pearce [ North Carolina v....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1708324
...The State contends in its Response that Petscher is not entitled to credit for time spent in the boot camp because [n]o part of the time that a defendant is on probation or community control shall be considered as any part of the time that he or she shall be sentenced to serve. § 948.06(3), F.S.2005. Appellant is not entitled to credit for time served as a condition of his probation. Section 948.06(3) provides in pertinent part that "[w]hen the court imposes a subsequent term of supervision following a revocation of probation or community control, it shall not provide credit for time served while on probation or community control...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2002 WL 1625474
...As a threshold matter, if a defendant violates probation, the court can revoke the defendant's probation and may "impose any sentence which it might have originally imposed before placing the probationer on probation." See Landeverde v. State,
769 So.2d 457, 463 (Fla. 4th DCA 2000) (quoting §
948.06(1), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2005 WL 94507
...Duffy, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant, Michael Mundorff, appeals the trial court's order revoking his probation. Appellant argues that the trial court erred in failing to comply with the requirements of section 948.06 (2001), Florida Statutes, when it previously extended his term of probation....
...on officer filed an affidavit of violation against appellant, charging appellant with several probation violations. The trial court found appellant guilty of two of the violations and sentenced him to three years' imprisonment. This appeal followed. Section 948.06, Florida Statutes (2001), states, in pertinent part, that: [t]he court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation.......
...der an opportunity to be fully heard on his or her behalf in person or by counsel. After such hearing, the court may revoke, modify, or continue the probation.... Explaining the application of this section, the supreme court has held that: [s]ection 948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control....
...Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation ... must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06....
...Schafer,
583 So.2d 374, 375 (Fla. 4th DCA 1991) (citing Marsh v. State,
559 So.2d 411 (Fla. 2d DCA 1990)). "A probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures set forth in [section]
948.06." Carter v....
...State,
391 So.2d 806 (Fla. 5th DCA 1980)). Because appellant was never charged with a violation of probation during his original term of probation, the trial court lacked jurisdiction to find appellant in violation and sentence him to an additional period of probation. See §
948.06(1), Fla....
...The trial court's informing appellant that he could choose to have a "violation order" and probation hearing, where appellant would be represented by counsel, was insufficient to constitute a knowing waiver of appellant's right to counsel, and did not comply with the requirements of section
948.06. Cf. Holcombe v. State,
553 So.2d 1337, 1338-40 (Fla. 1st DCA 1989) *1237 (holding that neither the court, the probation officer, nor the appellant could agree to a modification of his probation that did not comply with the procedures set forth in section
948.06)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 3621, 2009 WL 482288
...Because the trial court may have overlooked this reference in the booking document to her "arrest" for violating probation, we reverse the order denying rule 3.800(a) relief, and remand to the trial court for reconsideration of this issue. REVERSED and REMANDED. PALMER, C.J. and EVANDER, J., concur. NOTES [1] Section 948.06(1)(a), Florida Statutes, authorizes any law enforcement officer who is aware of the probationary status of a probationer and who has reasonable grounds to believe that the probationer has violated his or her probation in a material res...
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1994 WL 51095
...would necessarily exceed the 15-year statutory maximum term for that offense. See §§
893.13 and
775.082, Fla. Stat. (1989). Unlike Green, however, Jones's offenses were committed on October 19, 1989, after the October 1, 1989, effective date of subsection
948.06(6), Florida Statutes (1989); thus, "credit for time served" no longer includes forfeited gain-time or commutation of time for good conduct earned up to the date of his release on probation. §
948.06(6), Fla....
...However, it seems clear that at the violation of probation hearing the trial court treated the original sentences as we have. [2] In Moultrie v. State,
618 So.2d 789 (Fla. 1st DCA 1993), this court stated that "[i]n 1990, the legislature effectively overruled Green, when it enacted what is now section
948.06(6), Florida Statutes....
...89-526, § 8, at 2664, Laws of Fla." That statement is inaccurate because Moultrie failed to consider subsequent legislation in chapter 89-531, sections 13 and 20, Laws of Florida, enacted during the same session of the legislature, which added subsection 948.06(6) effective on October 1, 1989....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1995 WL 68743
...In affirming the trial court, the Fourth District stated: This court has held that the state's prior stipulation to a downward departure is a valid ground supporting a subsequent sentence below the guidelines. State v. Devine,
512 So.2d 1163 (Fla. 4th DCA), rev. denied,
519 So.2d 988 (Fla. 1987). Additionally, section
948.06(1), Fla....
...The fourth and fifth district decisions reason that upon a revocation of probation or community control, the trial court is authorized to impose any sentence which it might have originally imposed. State v. Glover,
634 So.2d at 248 (quoting State v. Hogan , 611 *695 So.2d at 79, and §
948.06(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2003 WL 22867623
...(emphasis added). It is evident that the court misunderstood its options. The court did not have only one recourse, but was authorized to "revoke, modify, or continue the probation or community control or place the probationer into a community control program." § 948.06(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 3555579
...This is not a case in which the violation of probation affidavit was never served on Felton, or where the affidavit did not provide adequate notice of the charge forming the basis for revocation. See id. The error is not in the substance of the charging affidavit, but rather "involves a failure to comport with a provision of section 948.06(1), Florida Statutes [(2004)]....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1992 WL 385497
...This court has held that the state's prior stipulation to a downward departure is a valid ground supporting a subsequent sentence below the guidelines. State v. Devine,
512 So.2d 1163 (Fla. 4th DCA), rev. denied,
519 So.2d 988 (Fla. 1987). Additionally, section
948.06(1), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2005 WL 3543920
...However, Larimore was in custody after the effective date of the Jimmy Ryce Act because he spent 82 days in the county jail on the violation of probation charge before his probation was revoked on February 29, 2000. We conclude that such custody was lawful because it was authorized by section 948.06(1), Florida Statutes (1999), and Florida Rule of Criminal Procedure 3.790(b)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2000 WL 1816711
...2d DCA 1999), the second district held that pursuant to section
918.0157 "once a county court has ordered that a defendant will not be incarcerated and denied that defendant a jury trial based on that commitment, it may not later impose incarceration for a violation of probation." The court concluded that while section
948.06(1), allows a trial court to "impose any sentence which it might have originally imposed before placing the probationer or offender on probation," the "order of non-imprisonment" eliminated incarceration as a penalty for the underlying offense and thus removed it as a possibility for any probation violation....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1991 WL 148345
...We are called upon to determine whether the violation meets the willful and substantial test of Kolovrat v. State,
574 So.2d 294 (Fla. 5th DCA 1991), and whether Goley violated his probation in any material respect so as to support revocation under section
948.06, Florida Statutes (1989)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1990 WL 115528
...sis added).) See also Brown v. State,
463 So.2d 1230, 1232 (Fla. 1st DCA 1985). Thus, the trial court was not re sentencing Williams when it imposed the sentence at issue; rather, it was imposing a sentence for the first time. Therefore, pursuant to section
948.06(1), Florida Statutes (1989), upon revoking defendant's probation, the court was authorized to impose any sentence that it might have originally imposed before placing Williams on probation....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 3978700
...the first sentence of the provision, we need not address the second sentence. Section
958.14 provides: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06....
...When a defendant has been designated a youthful offender, the court may not change that status by way of revocation of probation or community control. See State v. Watts,
558 So.2d 994 (Fla.1990); Watson v. State,
528 So.2d 101 (Fla. 1st DCA *727 1988); Rogers v. State,
972 So.2d 1017 (Fla. 4th DCA 2008). Under section
948.06(2)(b), Florida Statutes (2003), revocation of probation subjected Hudson to any sentence that might have originally been imposed, minus credit for time served....
CopyCited 4 times | Published | Supreme Court of Florida
...a sentence alternative under Chapter 948, Florida Statutes. Another analogous situation exists with reference to the "split sentence" alternative, which is the imposition of a short period of incarceration as a condition of probation, authorized by Section 948.06, Florida Statutes....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1996 WL 430841
...Routenberg is now the undeserving beneficiary of the manner in which the guidelines operate. Because none of the justifications existed at the time of the initial sentencing for the original offense, they are invalid. Williams v. State,
581 So.2d 144 (Fla.1991); §
948.06(1), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2003 WL 21920388
...NOTES [1] Effective July 1, 2001, the Legislature has changed the law. "Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, the probationary period is tolled until the court enters a ruling on the violation." §
948.06(1), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 1923389
...Watson was also warned that a score over 44 points could result in a prison sentence under the sentencing guidelines. Watson said she understood, but elected not to withdraw her admission of probation violation. The judge proceeded to announce her decision to modify Watson's probation pursuant *944 to section 948.06(2)(a), Florida Statutes (2005), which provides that upon accepting an admission of violation, the court may "revoke, modify, or continue the probation." The state objected to the court's ruling because no grounds for a downward departure sentence were stated....
...occurred, because we agree with the trial judge that under Florida's present statutes and rules, the sentencing guidelines do not apply to orders modifying or extending probation orders. Trial courts have discretion to render such orders pursuant to section 948.06, Florida Statutes, uncompromised by the sentencing guidelines....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1994 WL 122948
...State,
601 So.2d 1264 (Fla. 3d DCA 1992). Of course, in any subsequent enforcement proceeding based on the appellant's failure to comply with the restitution provisions of probation, the appellant may defend based on his financial inability to pay. See §
948.06(4), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2007 WL 1223456
...on was solely based upon alleged violations that were the subject of an amended affidavit that was first filed after his term of probation had expired, contrary to the holding in State v. Hall,
641 So.2d 403 (Fla.1994). Since that decision, however, section
948.06, Florida Statutes, has been amended to include a provision tolling the probationary period upon the filing of an affidavit alleging a violation of probation and expressly conferring continuing jurisdiction on the trial court to address "any violation ....
CopyCited 4 times | Published | Supreme Court of Florida
...In Singletary, supra, the court set out the various methods by which probationers may be arrested and detained for revocation hearings: "In Florida there are three separate procedures for arresting and holding a probationer as prelude to a probation revocation hearing. First, F.S. Section 948.06, F.S.A., authorizes any probation supervisor, upon reasonable ground to believe a violation has occurred, to arrest a probationer without a warrant, and forthwith return him to the court granting probation....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1995 WL 170002
...of probation."). The added condition enhanced appellant's original sentence by imposing an "additional hardship" in the absence of a violation of Special Condition 12. See Lippman,
633 So.2d at 1064. As the Fifth District Court explained in Lippman: Section
948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v. State,
579 So.2d 109 (Fla. 1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; §
948.06(1), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1992 WL 217186
...f the restitution order or be otherwise incapable of complying with its directions, we observe that there are sufficient protections afforded a defendant who is unsuccessful in obtaining the resources to pay court-ordered restitution. As provided in Section 948.06(4), Florida Statutes (1989), if the state establishes that a probationer has failed to pay restitution or the costs of supervision, the probationer must be given the opportunity to prove that he or she does not have the financial resou...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1995 WL 521099
...We reverse appellant's newly-imposed sentence and remand for correction of the order to reflect the appropriate amount of credit for time served on community control from August 25, 1993, the date of imposition of community control, through June 3, 1994, the date of entry of the valid order of revocation. § 948.06(2), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 479, 2010 Fla. LEXIS 1456, 2010 WL 3431710
...On October 1, 2007, after Shen-feld’s probation would have expired absent tolling, an amended affidavit was filed. The amended affidavit changed the dates of Shenfeld’s alleged violations. Shenfeld,
14 So.3d at 1023 . When Shenfeld was placed on probation, section
948.06(1), Florida Statutes (2001), provided that “[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, the probationary period is tolled until the court enters a ruling on the violation.” Florida district courts of appeal held that under the 2001 version of section
948.06(1), “[b]oth the filing of an affidavit of violation and the issuance of an arrest warrant are required to toll the probationary period, and the mere filing of the affidavit is insufficient.” Jones v. State,
964 So.2d 167, 170 (Fla. 5th DCA 2007) (citing Sepulveda v. State,
909 So.2d 568, 570 (Fla. 2d DCA 2005)). In 2007, the Legislature amended section
948.06(1) to allow for tolling of the probationary period “[ujpon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section.” §
948.06(l)(d), Fla. Stat. (2007). This amendment became effective June 20, 2007. Ch. 2007-210, § 7, at 1938, Laws of Fla. The amended statute thus was in effect when Shen-feld violated his probation. *99 Relying on the 2001 version of section
948.06(1), Shenfeld moved to dismiss the affidavits of violation of probation....
...lations was issued during his probationary period, his probation was never tolled and the trial court lacked jurisdiction to revoke his probation once the probationary period expired. Shenfeld farther asserted that application of the 2007 version of section 948.06(1) to him was an ex post facto violation....
...The Fourth District concluded that Shenfeld did receive a true split sentence and that the maximum sentence he could have received after violating his probation thus was five years. Id. at 1025 . Second, Shenfeld argued that the trial court violated the prohibition on ex post facto laws by retroactively applying section 948.06(1), Florida Statutes (2007), in his case....
...Shenfeld continued to assert his argument that had the trial court applied the probation tolling statute that was in effect when he was originally placed on probation, the trial court would not have had jurisdiction to consider the alleged violations of probation. The Fourth District concluded that the application of section 948.06(1), Florida Statutes (2007), to Shen-feld’s revocation of probation proceeding was not an ex post facto violation because it determined that the 2007 amendment to section 948.06(1) was procedural in effect....
...Based on the foregoing, the Fourth District reversed and remanded with directions that the trial court sentence Shen-feld to a term of five years. In addition, the Fourth District certified conflict with Harris and Frye on the issue of whether application of an amendment to section
948.06(1) affecting the tolling of probation was an ex post facto violation. Shenfeld,
14 So.3d at 1024 . We accepted jurisdiction. II. ANALYSIS On appeal, Shenfeld contends that the 2007 version of section
948.06(1) could *100 not constitutionally be applied to him and that the trial court therefore erred in denying his motion to dismiss. Specifically, Shenfeld asserts that the ex post facto clauses of the United States Constitution and the Florida Constitution prohibit retroactive application of section
948.06(1), Florida Statutes (2007), in his revocation of probation proceeding. The State contends that section
948.06(1), Florida Statutes (2007), was not applied retroactively in this case and, alternatively, that if the statute was applied retroactively, the application was constitutional....
...2446 ,
96 L.Ed.2d 351 (1987) (quoting Dobbert,
432 U.S. at 293 ,
97 S.Ct. 2290 ); see also Beazell v. Ohio,
269 U.S. 167, 171 ,
46 S.Ct. 68 ,
70 L.Ed. 216 (1925). *101 Such matters of substance are implicated only when the law falls within one of the four Calder categories. The 2007 revision to section
948.06(1) at issue here is a matter of procedure that does not fall within any of those categories....
...eld . We decline to specifically address the constitutionality of the earlier version of the statute which has been superseded by the version at issue in Shenfeld . III. CONCLUSION We approve the decision of the Fourth District. The 2007 revision to section 948.06(1), Florida Statutes (2007), was procedural in nature....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 14802, 2013 WL 5226610
...The trial court subsequently entered a written order designating Bailey as a violent felony offender of special concern, and this designation is also included on the written judgment and sentence. Bailey argues that the trial court’s written order imposing this designation does not satisfy the requirements of section 948.06(8)(e), Florida Statutes (2010), and that this failure requires this court to strike the designation and remand for further proceedings. 1 We agree. Section 948.06(8) imposes additional requirements on the trial court when a probationer before it on revocation proceedings is a violent felony offender of special concern....
...For purposes of this subsection, the term “convicted” means a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld. (b) For purposes of this section and ss.
903.0351,
948.064, and
921.0024, the term “violent felony offender of special concern” means a person who is on: 1....
...775.084(l)(c) and has committed a qualifying offense on or after the effective date of this act; or 6. Felony probation or community control and has previously been found by a court to be a sexual predator under s.
775.21 and has committed a qualifying offense on or after the effective date of this act. §
948.06(8). The statute then provides a list of nineteen categories of offenses that are “qualifying offenses” under the statute. §
948.06(8)(c)....
...If the court has found that a violent felony offender of special concern 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 this section. § 948.06(8)(e) (emphasis added)....
...hearing required under subsection (d). Instead, he argues only that the trial court’s written order fails to satisfy the requirements of subsection (e). The written order rendered in this case is a document entitled “Written Findings Pursuant to Section 948.06(8), Fla....
...ourt considers relevant: Using this form, the trial court is presumably expected to place an “X” in the appropriate blank or blanks based on the findings it makes for the probationer before it. We are not convinced that, given the intricacies of section 948.06(8), the use of such a pre-printed form is sufficient to demonstrate that the trial court complied with its statutory obligation to make specific findings on the enumerated issues....
...While the trial court did place an “X” on the line indicating that it found Bailey to be a violent felony offender of special concern who posed a danger to the community, the court did not place an “X” in any of the blanks to indicate which specific facts listed in section 948.06(8)(e) it was relying on to find that Bailey qualified as such....
...The State concedes in its brief that no oral findings were made and that the written order is facially deficient. Accordingly, because the written order designating Bailey as a violent felony offender of special concern does not satisfy the requirements of section 948.06(8)(e), *621 we strike that designation and remand for further proceedings....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1991 WL 185192
...He raises three issues, the only one of which we need address being his assertion that a no contest plea does not support revocation and that the absence of other evidence to support the order denied him his right to due process. Upon examination of this contention, we dismiss the appeal. Section 948.06(1), Florida Statutes provides, in part: The court, upon the probationer or offender being brought before it, shall advise him of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or cont...
...ty of the offense charged and proven or admitted, unless he has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control. (e.s.) Section 948.06(1) does not require formal arraignment with entry of a plea. Rather, the trial court must advise the probationer of the charge and allow the probationer to admit or not admit the truth of the charge. [1] Nothing in § 948.06(1), Florida Statutes, prevents the court from considering a no contest plea to be an admission of the violations....
...See Vinson; Vernold v. State,
376 So.2d 1166 (Fla. 1979) (plea of nolo contendere admits the facts alleged in the information). The procedure below did not deny appellant his due process rights as he now argues. The trial court fully complied with the requirements of §
948.06(1), Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2850080
...nd related warrant if the warrant is not served within a reasonable time. When a committing trial court issues a warrant on an affidavit of violation of probation, it is "returnable forthwith" before the court that granted the term of probation. See § 948.06(1)(b), Fla. Stat. (2005). The term of probation does not continue running while the warrant is outstanding. Instead the term of probation is "tolled." See § 948.06(1)(d)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1993 WL 424204
...ers and which in that instance would have required corresponding credit. Rather, the court took the matter back to the drawing board, so to speak, and imposed four years' prison followed by one year probation. This the court was entitled to do under section 948.06(1), Florida Statutes (1991), which provides that on revocation of community control or probation the court may impose any sentence it might originally have imposed before placing a defendant on community control....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2007 WL 3025021
...Because the probationer is only on probation as an act of grace of the sentencing court, the sentencing court has the discretion to grant or deny bail pending the revocation hearing. A first appearance judge has the authority to set bail only pending a further hearing before the sentencing court. See § 948.06(4), Fla....
CopyCited 3 times | Published | District Court, M.D. Florida
...Despite Benoit's protestations of innocence, the officers arrested him for: (1) willfully violating the Injunction in violation of Florida Statute section
741.31(4)(a)(5) ; (2) stalking in violation of Florida Statute section
784.048(2) ; and (3) violating the terms of his probation in violation of Florida Statute section
948.06....
...Further, Florida Statute section
784.048 provides that "[a] person who willfully, maliciously, and repeatedly follows, harasses 17 , or cyberstalks 18 another person commits the offense of stalking, a misdemeanor of the first degree." See id. §
784.048. Lastly, Florida Statute section
948.06(1)(a) provides that whenever an officer has reasonable grounds to believe that one has violated the terms of his probation in a material respect, the officer may arrest the probationer without a warrant. See id. §
948.06(1)(a)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1993 WL 408223
...nce. Under the instant circumstances, upon revocation of Appellant's probation, the trial court was entitled to impose a sentence for the remaining balance of the suspended portion of Appellant's sentence pursuant to the original plea agreement. See § 948.06(1), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1988 WL 117613
...to demonstrate by clear and convincing evidence that he does not have the ability to pay. Clark v. State,
510 So.2d 1202 (Fla. 2d DCA 1987); Morgan v. State,
491 So.2d 326 (Fla. 1st DCA 1986); Bass v. State,
473 So.2d 1367 (Fla. 1st DCA 1985); *894 §
948.06(4), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1992 WL 361273
...89, the sentence imposed after that date upon revocation of community control would be illegal based on Davis and Servis. It is true that a trial court may impose any sentence which it might have imposed originally (five years' prison in this case), § 948.06(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2012 WL 1557325, 2012 Fla. App. LEXIS 7007
...ge. In this appeal of the order revoking his probation, Anthony Martin argues that the trial court erred in failing to provide written reasons for its finding that, as a violent felony offender of special concern, he poses a danger to the community. § 948.06(8)(e), Fla. Stat. (2010). However, the trial court orally pronounced a reason that is consistent with section 948.06(8)(e)(l)(c)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1993 WL 169180
...ually served. State v. Green,
547 So.2d 925 (Fla. 1989). Accord Latham v. State,
596 So.2d 140 (Fla. 1st DCA 1992); Bolden v. State,
557 So.2d 630 (Fla. 1st DCA 1990). In 1990, the legislature effectively overruled Green, when it enacted what is now section
948.06(6), Florida Statutes....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...s for temporary revocation apply. The record herein reflects that petitioner was arrested pursuant to a warrant for his arrest, as opposed to his arrest for a new felony charge. When a probationer is arrested pursuant to a warrant, the provisions of Section 948.06, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1998 WL 135136
...That is particularly true of the requirement to file monthly reports. It is through these reports that continuing supervision over one on probation is maintained. If the court can not insist that these reports be filed, then probation ceases to be a viable alternative to incarceration. Although section 948.06(4), Florida Statutes (1995) refers to a violation being "material," it does not change the law that it is the trial judge, at least in the first instance, that should make that determination....
...sufficient to support a revocation. Burgin v. State,
623 So.2d 575 (Fla. 1st DCA 1993); McPherson v. State,
530 So.2d 1095, 1097 (Fla. 1st DCA 1988); Sampson v. State,
375 So.2d 325 (Fla. 2d DCA 1979). But those cases were apparently decided before section
948.06(3), Florida Statutes (1995) became effective. Section
948.06(3) provides: Notwithstanding any other provisions of this section, ......
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1992 WL 55247
...ingle act, which is precisely the situation in the instant case, Blockburger applies. Neither the statute defining contempt, section
38.23, Florida Statutes (1989), nor the section setting forth the permissible punishment for violation of probation, section
948.06, Florida Statutes (1989), gives any indication as to whether the legislature intended punishment for both when the two charges are premised upon the same act....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2000 WL 266310
...Jackson,
526 So.2d 58 (Fla.1988). Section
958.14, Florida Statutes, provides: Violation of probation or community control program.A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1)....
...e agrees. For the following reasons, I disagree. Section
958.14 provides in pertinent part as follows: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of section
948.06(1)....
...for a technical or non-substantive violation for a period longer than six years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated. Section
948.06(1) (emphasis added), to which section
958.14 refers, provides in pertinent part: Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control h...
...e or she has previously been adjudged guilty, and impose any sentence which it *106 might have originally imposed before placing the probationer on probation or the offender into community control. In my view, the reference in section
958.14 back to section
948.06(1) was intended to and does authorize the trial court, upon a finding of a violation of probation or community control, to deal with one who was initially afforded youthful offender treatment as it would any other probationer or community controllee. Otherwise, the reference back to section
948.06(1) seems to me bereft of meaning. To be sure, section
948.06(1) speaks to procedural matters such as arrest and hearing but it is also substantive in that it authorizes the trial court to revoke probation or community control upon a finding of a "material" violation by the probationer or community controllee and to sentence the offender to "any sentence which it might have originally imposed." Additionally section
948.06(1) requires the court to adjudge the "probationer or offender guilty of the offense charged" unless such has previously been done. To be noted also is the fact that section
948.06(1) makes no use or mention of "substantive" or "technical" violation of probation or community control as does section
958.14....
...[2] Thus, it *107 seems to me that the majority opinion confuses the commission of a "substantive" criminal offense with a "substantive" violation of conditions of community control. However, since I believe it is clear that the trial court sentenced Meeks under the provisions of section 948.06(1) both when he violated probation and later when he violated community control, I see no need to further explore the meanings of "substantive" and "technical." I would affirm the judgment and sentence below for the above-stated reasons....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1996 WL 346919
...Summers,
642 So.2d 742 (Fla.1994) pointed out that such credit is specifically prohibited by statute. "No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve." §
948.06(2), Fla....
...Probation is a minimal restraint on liberty compared with incarceration, and a probationary period is not considered to be a "sentence." See State v. Summers,
642 So.2d at 744. Accordingly the statute provides that upon violation of probation, the trial court may impose any sentence which might have originally been imposed, §
948.06(1), Fla....
...2d DCA 1993) (en banc), approved, State v. Summers,
642 So.2d at 744. This is not an anomaly, but on the contrary is the explicit legislative intent. Section
775.082, Florida Statutes, establishes legal maximum penalties, and must be read in pari materia with Section
948.06 Florida Statutes, which regulates probation....
...For a felony of the third degree, by a term of imprisonment not exceeding 5 years." Id. §
775.082(3)(d) (emphasis added). The probation statute provides that upon revocation of probation, a term of incarceration can be imposed without giving credit for time previously served on probation. §
948.06(2), Fla....
CopyCited 3 times | Published | District Court, M.D. Florida | 2010 U.S. Dist. LEXIS 61981, 2010 WL 2540114
...Both are inapposite inasmuch as they address tolling issues in a context (supervision of individuals serving probationary sentences) that differs significantly from that presented here. [9] Notably, in response to the Francois decision the Florida legislature amended the relevant probation statute, FLA. STAT. § 948.06, to specifically provide for tolling of probationary periods in certain circumstances, but has never provided for tolling in the Conditional Release Program Act, FLA....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...Stat., F.S.A.), upon revocation of the probation can the court impose, on the already sentenced defendant, a new sentence of imprisonment in the state penitentiary for a period of years, such as the court could have originally imposed (as permitted by § 948.06 Fla....
...Where that is done, then upon a subsequent revocation of the probation the court is called upon to sentence the defendant where no sentence has previously been imposed, and in such case by statute the court may "impose any sentence which it might have originally imposed before placing the probationer on probation." § 948.06(1) Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1996 WL 426156
...court was not required to give Young credit for time served on community control against his new sentence of incarceration. See State v. Holmes,
360 So.2d 380, 383 (Fla.1978), holding limited by, State v. Summers,
642 So.2d 742 (Fla.1994). See also §
948.06(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1997 WL 422570
...The statute further expressly authorizes the probation supervisor to arrest a probationer without a warrant and to bring the probationer before the court which entered the probation order whenever there is a reasonable ground to believe the probationer has violated his probation. § 948.06, Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...ining Center in Lee County. *96 Appellant having filed a motion to expedite this appeal, oral argument is dispensed with. [5] Accordingly, the order of the trial court here appealed is Affirmed. HOBSON, A.C.J., and McNULTY, J., concur. NOTES [1] See Section
948.06(1), Florida Statutes, F.S.A. [2] See Mitchum v. State, Fla.App.1st, 1974,
292 So.2d 620. [3] Barber v. State, Fla. 1974,
293 So.2d 710. [4] Section
948.06(1), Florida Statutes, F.S.A., authorizes upon revocation of probation the imposition of any sentence which might have been originally imposed....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1995 WL 407450
...The appellant filed a motion to correct his sentence, claiming that he should have received credit for the ten years he had already served on probation. The circuit court denied the motion, and this appeal followed. While the appellant is not entitled to credit for the entire ten year period under Florida Statutes Section 948.06(2), the new sentence is illegal because it exceeds the maximum punishment provided by law....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2006 WL 141068
...3d DCA 1979)("Having fully accepted the improper sentence in the prior proceedings, the defendant may not subsequently come before the courts advocating a mutually inconsistent position."). Further, a trial court has subject matter jurisdiction over a probationer for the term of probation. See § 948.06(1)(a), Fla....
...(2004). Appellant's probation did not expire until December 6, 2004. The affidavit of violation was filed on October 5, 2004. Once a violation affidavit is filed, the probationary period is tolled until the court enters a ruling on the violation. See § 948.06(1)(d), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1994 WL 11553
...r time served in county jail, 254 days for time served in prison but denied him credit for the 254 days of gain time. Pursuant to rule 3.800(a) of Florida Rules of Criminal Procedure, appellant moved to correct his sentence. In his motion, he argued section 948.06(6), Florida Statutes (1989), which authorizes forfeiture of gain time after revocation of probation, had no effect on his sentence since he committed the crime prior to the effective date of the statute....
...Green,
547 So.2d 925 (Fla. 1989), appellant claimed he was entitled to receive credit for his 254 days of gain-time. On September 23, 1993, the trial court denied appellant's motion. The trial court reasoned Green, decided on July 20, 1989, was abrogated by section
948.06(6), Florida Statutes, which became effective on October 1, 1989....
...thout credit for his gain time since appellant's original crime was committed prior to the effective date of the statute. Since we have previously held Green applies where a defendant has committed the original offense prior to the effective date of section 948.06(6), see Thomas v....
...able to his good behavior under section
944.275, Florida Statutes, and apply such credit to his current sentence. REVERSED and REMANDED. DELL, C.J., and POLEN and FARMER, JJ., concur. NOTES [1] In Thomas we incorrectly observed the effective date of section
948.06(6) to be September 1, 1990....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1993 WL 5319
...See Daniels v. State,
491 So.2d 543, 545 (Fla. 1986) (defendant sentenced to consecutive imprisonment not entitled to credit in each sentence for time spent in jail awaiting disposition). Affirmed; remanded. RYDER, A.C.J., and SCHOONOVER, J., concur. NOTES [1] Section
948.06(6), Florida Statutes (Supp....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 20773
...1976); Blankenbaker v. State,
744 So.2d 573 (Fla. 2d DCA 1999). Indeed, Tur correctly points out that sentencing after a probation revocation is merely a "deferred sentencing proceeding." See Green v. State,
463 So.2d 1139, 1140 (Fla.1985). Pursuant to section
948.06(1), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...olina
Lumber Co. v. Daniel,
97 So. 2d 156, 158 (Fla. 1st DCA 1951))). Applying this deferential
standard, we conclude, without further elaboration, that competent substantial evidence
supports the trial court’s order revoking probation.
Section
948.06(2), Florida Statutes (2014), provides the trial court with the
authority and discretion to revoke, modify, or continue probation once the court has found
4
a violation....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2008 WL 536645
...It includes by direct reference treatment-based drug court programs established pursuant to section
397.334. Moreover, Administrative Order No. 01-19-S implemented the drug court program in Seminole County so that the substance abuse education and treatment program described in section
948.06(6)(a) could become operational in that county....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...be imposed by the court." (emphasis added.) F.S. Section
948.04, F.S.A., provides that the period of probation ordered by the court shall not exceed more than two years beyond the maximum term for which the defendant might have been sentenced. F.S. Section
948.06, F.S.A., provides that upon revocation of probation the court shall: "* * * impose any sentence which it might have originally imposed before *505 placing the probationer on probation." (emphasis added.) Thus it appears that the sentence actually imposed by the trial judge was less than that allowed by law....
...sed, well within the limitation set forth in F.S.
922.051, F.S.A. If the defendant's probation is not revoked then the total sentence imposed will have been only three months. Should probation be revoked he may then be sentenced in accordance with F.S.
948.06, F.S.A., for nine more months in the county jail or for four years and nine months in the state penitentiary....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1995 WL 74478
...Therefore, the trial court did not err by failing to award appellant time served on probation for Case No. 91-708. Summers has not been extended to require a court to consider terms of imprisonment, in considering whether the terms exceed the statutory maximum. Summers held that §
948.06(2), Florida Statutes, which provides that "No part of the time that the defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve," applies when probation or community control is revoked and a term of incarceration is imposed. See Ogden v. State,
605 So.2d 155, 158-159 (Fla. 5th DCA 1992) (§
948.06(2) does not apply when defendant is placed on community control or probation in lieu of being sentenced); Chaitman v....
...t was entitled to credit for time served in prison, but was not entitled to credit for the 118 days he spent on probation). In this case, unlike Summers, a term of incarceration was imposed after violating probation and community control. Therefore, § 948.06, Florida Statutes applies to the present case, and the probation and community control period should not be considered in imposing the sentence of five years in the department of corrections. After violating probation, the trial court was permitted to sentence appellant to any sentence *206 which it might have originally imposed before placing appellant on probation or community control. § 948.06(1), Fla....
...nce of five years in the Department of Corrections followed by five years of probation. The sentence imposed after violating probation is a sentence that the trial court could have originally imposed, and is, therefore, legal. §§
775.082(3)(c) and
948.06(1), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 1268, 2009 WL 383626
...davits" are governed by a separate Florida law, section
92.50, requiring a separate acknowledgment signed and sealed by a notary, judicial officer, or (if executed in a foreign country) a U.S. consular official. Certain Florida statutes, for example section
948.06, Florida Statutes (2008), specifically require an "affidavit," and a declaration subject to the penalties of perjury is therefore insufficient....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2005 WL 372043
...Defense counsel moved to dismiss the amended affidavit and report as untimely on authority of State v. Hall,
641 So.2d 403 (Fla.1994). The trial court denied the motion and accepted the state's argument that the amended affidavit and report were timely under section
948.06(1)(d), Florida Statutes, as amended in 2001....
...rt but that a violation had been established with regard to the allegations of the amended affidavit and report. Sentence was imposed and Harris appeals. In Frye v. State,
885 So.2d 419 (Fla. 1st DCA 2004), this court held that the 2001 amendment to section
948.06(1), Florida Statutes, would violate ex post facto protections if applied to sentences of persons whose offenses were committed before the effective date of the amendment....
CopyCited 3 times | Published | Supreme Court of Florida | 2000 WL 185433
...Accordingly, the petition for writ of habeas corpus is denied. It is so ordered. HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. NOTES [1] Section
944.28(1), Florida Statutes (1999) provides for the forfeiture of "all gain-time." Section
948.06(6), Florida Statutes (1999), provides similar forfeiture authority....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 WL 537562, 2014 Fla. App. LEXIS 1839
...delinquent and entered a separate disposition order for each charge in each case, committing him to a level eight, high-risk residential program. The disposition orders entered in case numbers 10-445, 11-174, and 11-388 referenced the adult violation of probation statute, section
948.06, Florida Statutes (2011), instead of the juvenile violation of probation statute, section
985.439, Florida Statutes (2011)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1993 WL 33347
...ial court, in effect, forfeited gain time earned on the incarcerative portion of the defendant's original two concurrent probationary split sentences. This cannot be done. See State v. Green,
547 So.2d 925 (Fla. 1989). Green applies, notwithstanding section
948.06(6), Florida Statutes, (Ch....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...Here, the trial court was under the mistaken belief that it could not impose a youthful offender sentence because the original probation was not a youthful offender sentence. A trial court, in imposing sentence following a revocation of probation, may impose any sentence which it could have originally imposed. See § 948.06(2)(b), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1989 WL 152165
...lary, and the sentence imposed thereon. He contends the trial court erred in modifying and enhancing the conditions of his original community control based solely on a written agreement between him and his probation officer in lieu of complying with § 948.06, Fla....
...he adjudication of guilt, and the sentence imposed are vacated and the cause is remanded for further proceedings consistent with this opinion. For the reasons stated in Holcombe we certify as a question of great public importance the following: DOES § 948.06, FLA....
CopyCited 3 times | Published | Supreme Court of Florida
...ioner's guilt and would not submit himself as a witness, and no testimony regarding the facts was adduced at the revocation hearing, the Second District held the probationer was denied the revocation hearing to which he was entitled. It further held Section 948.06, F.S....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2087883
...ationer or offender to prove by clear and convincing evidence that he or she does not have the present resources available to pay restitution or the cost of supervision despite sufficient bona fide efforts legally to acquire the resources to do so." § 948.06(5), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2000 WL 1224867
...unlawful arrest. We agree and hold that a police officer acting in good faith and in response to a probation officer's request to effect an arrest in the probation officer's presence, has the authority to conduct a search of a probationer's person. Section 948.06, Florida Statutes (1997), authorizes a probation officer to arrest a probationer without a warrant and to bring him before the court which entered the probation order, whenever there is a reasonable ground to believe that the probationer has violated his probation....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 11570, 2009 WL 2514170
...scoresheet. *234 The State has conceded that Sanders already had completed the originally imposed two-year term of probation for all of his third-degree felonies prior to the filing of the most recent affidavit of violation of probation. Pursuant to section 948.06, Florida Statutes (1999), the trial court only had jurisdiction to revoke his probation and sentence him on the second-degree offenses in case number 00-CF-2894those offenses for which he was still serving probation at the time of the alleged violation....
...However, Sanders' argument that his third-degree offenses should be listed as prior record on a recalculated scoresheet presumes that a recalculated scoresheet should have been prepared after the revocation of this probation. We do not agree with this presumption. [2] Section 948.06(1) states: "If probation ......
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1875532
...State introduced evidence that McNeil had held a paying job in December 2003. However, by McNeil's own admission at the revocation hearing, he voluntarily quit that job, leaving him unemployed and without funds to pay the costs involved. Pursuant to section 948.06(5), Florida Statutes (2003), once a probationer asserts the inability to pay, he or she must prove by clear and convincing evidence that he or she does not have the present resources available to pay despite "sufficient bona fide effor...
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1993 WL 299503
...[1] *592 It is well settled that once the state makes an initial showing of a probationer's failure to pay court-ordered costs, the burden shifts to the probationer to demonstrate by clear and convincing evidence that he or she lacked the ability to pay. § 948.06(4), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1994 WL 151314
...ny amount excused even if her conditions changed in the future. We prefer to leave in place the incentive for her to make as much of the restitution as she can leaving the burden on her, if challenged, to prove that she has paid all that she can. § 948.06, Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1994 WL 141204
...NOTES [1] This disposition obviates the need to address Thomas' additional argument that, based on her showing of inability to meet the restitution schedule, the trial court should have considered alternative methods of punishment to incarceration. See § 948.06(4), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1997 WL 178909
...She argues that it was error to revoke community control because the affidavit alleging that she had violated the conditions of her community control was not made under oath, and because the evidence presented at the revocation hearing was legally insufficient to establish that the violations had been willful. We affirm. Section 948.06(1), Florida Statutes (1995), provides that "any committing magistrate" may issue an arrest warrant for one alleged to have violated the conditions of his or her probation or community control "upon the facts being made known to him [or...
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2016 WL 1445593, 2016 Fla. App. LEXIS 5609
...The court specifically found the defendant violated probation by leaving the scene of an accident without giving information, but did not violate probation by giving false information to a law enforcement officer. The court then considered whether the defendant was a danger to the community, as required by section 948.06(8)(e)l, Florida Statutes (2014)....
...The trial court entered two written orders on June 16 and 17, 2014, respectively, which conformed to its oral pronouncements from May 19, 2014. 2 The first order articulated the court’s finding that the defendant was a danger to the community, pursuant to section 948.06(8)(e)l, Florida Statutes (2014)....
...On remand, we allowed the trial court to conduct the restitution hearing as it had reserved jurisdiction to do so. Id. at 1285-86 . Here, the trial court pronounced the specific condition violated at the hearing on May 19, 2014, and found the defendant posed a danger to the community as required by. section 948.06(8)(e)l....
...The defendant filed his notice of appeal on June 4, 2014. On June 16 and 17, 2014, the trial court entered two orders, respectively: (1) specifying the specific condition violated that was orally pronounced on May 19th; and (2) finding the defendant to be a danger to the community, a requirement under section 948.06(8)(e)l, also orally pronounced on May 19th....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2005 WL 826932
...nt of Corrections; the court is authorized to impose a sentence of imprisonment only upon revocation of probation, which can only occur *473 after a hearing upon the filing of an affidavit of violation of probation. [2] Fla. R.Crim. P. 3.790(a),(b); § 948.06, Fla....
...se after conviction; and (3) multiple punishments for the same offense. Ohio v. Johnson,
467 U.S. 493, 498,
104 S.Ct. 2536,
81 L.Ed.2d 425 (1984). It is the second of these three protections upon which Rodriguez bases his claim. [2] Sections
948.01,
948.06(1), Florida Statutes (2004), allows the court, upon finding a violation of probation, to impose any sentence which it might originally have imposed before placing the defendant on probation....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1990 WL 41221
...control followed by one year's probation. *412 Appellant argues that the court had no jurisdiction to revoke her probation by virtue of the fact that her probation expired on November 27, 1987, and her agreement to extend it is a nullity. We agree. Section 948.06, Florida Statutes (1987), provides the sole means by which a probationary term may be extended and a probationer and his probation officer cannot make a valid agreement to extend probation in lieu of compliance with the statutory procedures....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2006 WL 2570848
...n April 5, 1999, and that a warrant was issued the same day. Under the law as it now exists, the issuance of the warrant would have tolled termination of Mr. Stapler's community control supervision, which would have otherwise ended the next day. See § 948.06(1)(d), Fla....
...ity control and following issuance of warrant, probationary period is tolled until court enters ruling on violation); Sepulveda v. State,
909 So. 2d 568, 570 (Fla. 2d DCA 2005). However, Mr. Stapler committed his offenses prior to July 1, 2001, when section
948.06(1) was amended....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1992 WL 222169
...1334 (Fla. 1986). See also Williamson v. State,
388 So.2d 1345 (Fla. 3d DCA 1980). In our view, where a defendant has allegedly violated a condition of probation, the exclusive method for charging and trying this alleged violation is provided for in section
948.06, Florida Statutes (1991), rather than by indirect criminal contempt....
...This is so because the above statute provides in detail the exact procedure to be followed in the event a probationer allegedly violates a condition of his/her probation. If the legislature had intended to allow the use of the court's contempt power to punish a violation of probation, then section 948.06 or chapter 948 would have specifically so provided; no such provision, however, is contained in either section 948.06 or in chapter 948....
...and the cause is remanded to the trial court with directions to discharge the defendant from this cause. This disposition, however, shall be without prejudice for the state to institute violation of probation proceedings against the defendant under section 948.06, Florida Statutes (1991)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1998 WL 316558
...It has long been the rule that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1996 WL 604495
...1st DCA 1996). Accordingly, we reverse and remand this case to the trial court in order for the court to make the appropriate correction to the defendant's sentence. Reversed and remanded. NOTES [1] Chapter 89-531, Laws of Florida, was codified at section 948.06(6), Florida Statutes (Supp. 1990). Section 948.06(6) gives the trial court the authority to forfeit a defendant's gain-time if the probation or community control portion of a split sentence has been revoked. However, the effective date of section 948.06(6) was October 1, 1989. In the instant case, the offense was committed before October 1, 1989. As a result, section 948.06(6) is inapplicable to the instant case.
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 WL 2131639
...Stat. (2007) ("Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed."). However, the State utilizes the tolling provisions in section 948.06(1), Florida Statutes, to contend that the two prior violations tolled the period of probation and that the total period of time between the issuance of the warrant and the hearing on those alleged violations should be tacked onto the end of the original period of probation to automatically extend the probation period beyond the July 14, 2007, termination date. We do not believe that the provisions of section 948.06 or the cases applying the tolling provisions of that statute lend support for the interpretation advanced by the State that each and every violation period (the time between the issuance of the warrant and adjudication of the violation...
...tion of probation hearing to 150 days in jail as a condition of his probation and was given credit for the time he served in jail during both violation periods. MONACO, C.J., SAWAYA and PALMER, JJ., concur. NOTES [1] In 2007, the Legislature amended section
948.06(1)(d), Florida Statutes, to provide that "[u]pon the filing of an affidavit ... and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled ...." §
948.06(1)(d), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2007 WL 2963742
...nd sentencing him to nine years in prison, and remand with instructions to dismiss the violation affidavit. In dismissing the affidavit, the trial court shall also credit Pupo-Diaz for all time served and/or tolled against his term of probation. See § 948.06(2)(g), (2006)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2007 WL 3317518
...Another standard condition directed Burrell to submit to electronic monitoring if deemed necessary by his community control or probation officer. Under these conditions, electronic monitoring could have been imposed on Burrell, even without the Act. See § 948.06(1), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2013 WL 5927282, 2013 Fla. App. LEXIS 17643
...2 Zaborowski did not appeal the 2011 probationary sentence, 3 and in 2012 it again was alleged that he violated the terms of this probation. At the VOP hearing, Zaborowski argued that his original probationary period was not tolled by the filing of the 1994 affidavit of violation because the version of section 948.06 in effect at that time did not include language tolling the term of probation during the pendency of a VOP proceeding. See § 948.06(1), Fla....
...ed jurisdiction to find him in violation in 2012. 4 The State, however, contends that in addressing any subsequent VOP proceedings the trial court is not bound by the lack of tolling language in the version of the probationary statutes, specifically section 948.06(1), in effect in 1992 when Za-borowski was originally sentenced to probation and that section 948.06(1) was modified to include a tolling provision after he was sentenced....
...not otherwise deal with the applicability of the 1993 version of the statute that was in effect when the first affidavit of violation was filed in 1994. The State also relies on Shenfeld v. State,
44 So.3d 96 (Fla.2010), to assert that amendments to section
948.06(1) are procedural in nature and can be applied retroactively. In that case, Shenfeld’s original probation began under a version of section
948.06(1) that contained the tolling language added in 2001....
...This alleged violation occurred after the June 2007 effective date of a procedural amend *408 ment to the tolling portion of the statute which dealt with whether a warrant was required at the time of the filing of the affidavit of violation in order to toll probation. Id. Under the 2007 version of section 948.06(1), the affidavit of violation and Shenfeld’s arrest were sufficient to toll his probation, but Shenfeld argued that it would be an ex post facto violation to apply anything but the 2001 version of the statute in effect at the time his probation commenced....
...at 99 . The Florida Supreme Court concluded that applying the 2007 version of the statute — the version in effect when the affidavit of violation of probation was filed — was not an ex post facto violation. Id. at 102 . Here, the 1993 version of section 948.06, which was in effect at the time Zaborowski was alleged to have violated his probation, contained no tolling language....
...This category appears to support Zaborowski’s ex post facto claim if the term “the crime” is considered to be the violation of the conditions of his probation. Because no tolling language existed in the statute at the time of Zaborowski’s probation violations in 1994, the trial court could not apply any version of section 948.06 that contained tolling language to his VOP proceedings because no such version existed until after the 1997 expiration of his untolled probation....
...ny date or period of time that began within the duration of the untolled probationary period. However, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the following questions of great public importance: DO AMENDMENTS TO SECTION 948.06(1), FLORIDA STATUTES, REGARDING TOLLING RETROACTIVELY APPLY TO A PROBATIONER WHERE THE STATUTORY TOLLING LANGUAGE DID NOT EXIST AT THE TIME OF THE FILING OF THE INITIAL AFFIDAVIT OF VIOLATION OF PROBATION AND *409 WHERE THE UNTOLLED PROBATIONARY PERIOD ENDED PRIOR TO THE ENACTMENT OF THE SUBSEQUENT TOLLING AMENDMENTS? PRIOR TO THE ENACTMENT OF THE EXPRESS TOLLING LANGUAGE OF SECTION 948.06(1), FLORIDA STATUTES, IN 2001, COULD THE FILING OF AN AFFIDAVIT OF VIOLATION COUPLED WITH THE FILING OF AN ARREST WARRANT IMPLICITLY ACT TO TOLL THE EXPIRATION OF THE PROBATIONARY PERIOD WHERE THE PROBATIONER MAY HAVE ABSCONDED FROM TH...
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2013 WL 6050849, 2013 Fla. App. LEXIS 18224
...The State appeals the trial court’s order revoking Appellee’s probation and sentencing him to six months in the county jail, but withholding adjudication of guilt. 1 We agree with the State that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section 948.06(2)(b), Florida Statutes (2011)....
...We reject the State’s argument that the legal basis for the prosecutor’s objection is apparent from the argument presented below; at no point during the sentencing hearing did the prosecutor argue that it is improper to withhold adjudication of guilt after a revocation of probation, nor did the State ever mention section 948.06(2)(b)....
...gment, and does not appear to be fundamental error under Florida law). For these reasons, the order on appeal is AFFIRMED. ROBERTS, WETHERELL, and MARSTILLER, JJ., concur. . We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.140(c)(l)(L). . Section 948.06(2)(b) provides: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose an...
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2000 WL 1700940
...n jail. He also argues that the new five (5) year term of probation is excessive. Upon the revocation of probation, the trial court may impose any sentence that could have been originally imposed before placing Appellant on probation. See Fla. Stat. § 948.06(1)(1999)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 18533, 2014 WL 5877829
...Claude Dwayne Bell appeals the final order revoking his community control and sentencing him to serve 15 years in the Department of Corrections as a violent felony offender of special concern. At the conclusion of his sentencing hearing, the trial court orally pronounced that Bell posed a danger to the community. See § 948.06(8)(e), Florida Statutes (2013)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2001 WL 1416976
...POLEN, C.J., DELL, GUNTHER, STONE, WARNER, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR and HAZOURI, JJ., concur. NOTES [1] At that time, section 949.10 provided that an arrest was prima facie proof of a violation of probation. The Legislature repealed the provision and replaced it with section 948.06, which now merely provides that upon an arrest the arresting officer shall notify the probation officer....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1994 WL 169963
...of his own, that his sentence was an illegal downward departure. Fraser did not concern the penalty to be imposed subsequent to a violation and revocation of probation, but was fashioned in that particular case to prevent an unfair result. I analyze section 948.06, Florida Statutes (1993) in order to attempt to answer Judge Sharp's inquiry as to why credit for time served must be given when probation is imposed following a violation even though the same credit is not required if a term of incarceration is imposed....
...could extend probation ad infinitum beyond the statutory maximum for incarceration each time probation is revoked. The Ogden court stated it was doubtful that the legislature intended such a result. It is reasonable to conclude that the drafters of section 948.06, Florida Statutes, never contemplated that a sentencing judge would revoke probation and then reimpose probation upon a defendant who has committed a crime and has already been given the chance to avoid the more serious penalty. The last two sentences of section 948.06(1) provide: After [the probation violation] hearing, the court may revoke, modify, or continue the probation or community control or place the probationer into community control....
...State,
531 So.2d 161 (Fla. 1988); Villery v. Fla. Parole & Probation,
396 So.2d 1107, 1109 (Fla. 1980); State v. Holmes,
360 So.2d 380 (Fla. 1978). See also State v. Arnette,
604 So.2d 482 (Fla. 1992) (involving youthful offender treatment, citing section
948.06(1)). Section
948.06(1), Florida Statutes (1991) expressly so provides: If probation ......
...He had partially served it before his sentence was revoked for a violation. The trial court then sentenced him to 2 years on community control followed by 3 years on probation. *849 The Ogden court distinguished Ramey on the ground that Ramey involved successive probationary sentences. It held that section 948.06 barred a sentence for more than 2 years in length on community control, even though the second sentence is successive to the first....
...1981); Holmes; Smith v. State,
619 So.2d 994 (Fla. 3d DCA 1993). Further, such a view deprives the trial court of discretion to refashion a sentence short of straight prison time for a defendant who has violated his probation. That appears contrary to section
948.06(1) quoted above, and to Poore....
...Kendrick,
596 So.2d 1153, 1154 (Fla. 5th DCA 1992) [, rev. dismissed,
613 So.2d 5 (Fla. 1992)]. See also §§
948.01(1), (3), and (4), Fla. Stat. (1991). In the other situation the defendant, following revocation, is finally sentenced to incarceration, and section
948.06(1) then permits the court to impose "any sentence which it might have originally imposed." Ogden,
605 So.2d at 158....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1473730
...Accordingly, each of his initial sentences was a "probationary split sentence." [2] See Poore,
531 So.2d at 164. Following the revocation of Mr. Broughton's probation, the trial court could have imposed any sentence it might have originally imposed upon him. See §
948.06(1); Poore,
531 So.2d at 164....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2006 WL 1374016
...Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section 948.06, Florida Statutes (1993)....
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...bation. We find her
argument meritless.
Standards for Willfulness and Revocation
On a violation of probation for nonpayment, the state has the
initial burden of showing nonpayment and willfulness, by a
preponderance of the evidence. § 948.06(5), Fla....
...2011)).
Willfulness also arises from a failure to make “all reasonable
efforts” or “sufficient bona fide efforts legally to acquire the
resources to pay.” See Bearden v. Georgia,
461 U.S. 660, 672-73
(1983); Del Valle,
80 So. 3d at 1005-06 (citing standard set forth
in §
948.06(5), Fla....
...ance of the
evidence “that he or she does not have the present resources
available to pay restitution or the cost of supervision despite
sufficient bona fide efforts legally to acquire the resources to do
4
so.” § 948.06(5), Fla....
...offender guilty of the offense charged and proven or admitted,
unless he or she has previously been adjudged guilty, and impose
any sentence which it might have originally imposed before
placing the probationer or offender on probation or into
community control.” § 948.06(2)(e), Fla....
...separately charged with violating her probation for failure to
submit completed job-search logs, the law is clear that Appellant
had the burden to prove that she expended “sufficient bona fide
efforts legally to acquire the resources” to satisfy her financial
obligations. § 948.06(5), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 562
...3.701(d)(11) applicable here, but since amended precludes a trial court from considering factors relating to the "instant offense," plainly the instant offense on which a probation revocation sentence is imposed is the offense for which the defendant was originally found guilty and placed on probation. § 948.06(1), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 WL 762620
...time he previously served on community control when he violated the terms of his release. This appeal follows. In concluding that appellant was not entitled to credit for the time he previously served on community control, the trial court relied on section 948.06, Florida Statutes (1997), which provides in pertinent part: (3) When the court imposes a subsequent term of supervision following a revocation of probation or community control, it shall not provide credit for time served while on prob...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1994 WL 94308
...In affirming the trial court, the Fourth District stated: This court has held that the state's prior stipulation to a downward departure is a valid ground supporting a subsequent sentence below the guidelines. State v. Devine,
512 So.2d 1163 (Fla. 4th DCA), rev denied,
519 So.2d 988 (Fla. 1987). Additionally, section
948.06(1), Fla....
...In fact, he gave no reason at all. The majority infers that since Hogan permits a downward departure on this basis, we will assume that the trial judge relied on Hogan. Perhaps he did. Hogan relies, I believe, on an improper interpretation of that portion of section 948.06(1), Florida Statutes, (1991), which permits the sentencing judge in sentencing one who has violated probation to impose "any sentence which it might originally have imposed before placing the probationer on probation." [Emphasis added....
...n for departure prior to originally placing the defendant on probation, it can use that original reason, regardless of new circumstances or conditions, for departure when the defendant is up for sentencing for the violation. Notice, however, that in section 948.06(1), the legislature recognized the distinction between a "sentence" and the "placing" of the defendant on probation. The legislature recognized that probation is not a sentence; it merely defers sentencing. This makes it clear that, by enacting section 948.06(1), the legislature did not intend to authorize the court to use an outdated negotiated plea agreement as a basis for departing from the guidelines....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2006 WL 708666
...State,
884 So.2d 127 (Fla. 4th DCA 2004), the court held: "a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control." Cregan,
908 So.2d at 391; see §
948.06(3), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 106379
...en raised the issue before the trial court, defendant has not preserved the issue for appellate review. While the restitution order is enforceable, defendant may still raise his inability to pay in a subsequent violation of probation proceeding. See § 948.06(4), Fla.Stat....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1995 WL 335713
...ld in Griffin. The State specifically contends that because probation supervision is a "special need" situation, a warrantless search is permissible. The State further contends that the statute which authorizes a warrantless arrest of a probationer (section 948.06) also supports a warrantless search of a probationer under Griffin....
...condition authorizing such a search); United States v. Schoenrock,
868 F.2d 289 (8th Cir.1989) (upholding a warrantless search of a probationer's residence under Griffin based solely upon a condition of probation). A. First, we find Florida Statutes Section
948.06(1) to be pertinent....
...there are reasonable grounds to believe that a probationer ... has violated his probation ... in a material respect, any parole or probation supervisor may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant... . § 948.06(1), Fla....
...oes constitute a legislative endorsement of the "reasonable grounds" standard as a basis for an imposition upon a probationer's privacy. This "reasonable grounds" standard is identical to the standard approved as constitutional in Griffin. Moreover, Section 948.06(1) constitutes an implicit approval of a search based upon "reasonable grounds" because the Legislature certainly was aware that an arrest by a probation officer would authorize a search of the probationer incident to arrest, see United States v....
...ct warrantless searches of probationers in accordance with the views set forth in this opinion is not dependent upon a search condition expressly set forth in the order of probation."). Consequently, we find that the parameters derived from Sections
948.06 and
948.03 provided a sufficient regulatory scheme so as to uphold the search in this case under Griffin....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2005 WL 1412102
...Shearer,
628 So.2d 1102 (Fla.1993). Admittedly, the panel decision in Jackson v. State,
881 So.2d 666 (Fla. 5th DCA 2004), holds to the contrary, but I think Jackson was wrongly decided. In Jackson, we held that a "verified" document is not the legal equivalent of a section
948.06(1) "affidavit," because, although it is an oath given under penalty of perjury, it lacks the "solemnity inherent in requiring a probation officer to attest to a violation before a duly authorized officer....
...an "affidavit," may be accomplished by execution before a notary or by signing the specified declaration. By its express terms, this statute applies whenever "verification" (the execution of a "document" under oath) is "required" by law, as it is in section 948.06....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1999 WL 518823
...Rule 3.790(b) provides that when a probationer disputes the charge of violation of probation and is brought before the court which granted probation, then "as soon as practicable" the court should give the probationer "an opportunity to be fully heard in person, by counsel, or both." This rule is based on section 948.06(1) and (4), Florida Statutes, which contains similar provisions....
CopyCited 2 times | Published | Supreme Court of Florida
...E A DEFENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS
958.14 AND
948.06(2), FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE? Eustache ,
199 So.3d at 490 ....
...Auld ,
450 So.2d 217 , 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey ,
102 Fla. 1141 ,
137 So. 157 , 159 (1931) ). The sentencing of a youthful offender upon revocation of probation or community control is governed by sections
958.14 and
948.06, Florida Statutes (2005). In section
958.14, part of the Act, the Legislature provides that a youthful offender who violates probation or community control is to be sentenced under section
948.06, a separate provision of general law applicable to adult CPC sentences....
...as a substantive violation. Christian ,
84 So.3d at 439 -41 . Section
958.14 of the Act reads in full: A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06....
...1 of a youthful offender's probation or community control for a substantive violation. Section
958.14 also clearly and unambiguously directs that a violation of probation or community control "shall subject the youthful offender to the provisions of s.
948.06." Id. Section
948.06(2)(b) provides, If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. §
948.06(2)(b), Fla. Stat. (2005) (emphasis added). This section clearly provides for the imposition of "any sentence" that was "originally" available to the sentencing judge. Focusing on the plain language of section
948.06(2)(b), which applies to all violations of probation proceedings-youthful offender and non-youthful offender alike-the Fourth District held that after revoking a youthful offender's probation or community control for a substantive viola...
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 302
...We find that the more specific provisions of section
958.14, Florida Statutes (1983), govern over the more general provisions of section 958.10, Florida Statutes (1983). Section
958.14 provides that alleged violations of a community control program shall subject the youthful offender to the provisions of section
948.06(1), Florida Statutes (1983). Section
948.06(1) deals with violations of probation and community control and specifically vests jurisdiction in "the court granting such probation or community control." Loveless v....
CopyCited 2 times | Published | Supreme Court of Florida | 2008 WL 90048
...921.0024(1)(b), Florida Statutes, to mandate the assessment of community sanction violation points for violations occurring on or after March 12, 2007, of probation and community control by a violent felony offender of special concern as defined in section 948.06, Florida Statutes....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 372
...Defendant first contends that the trial court was without jurisdiction to revoke the community control. We disagree. See Crosby v. State,
462 So.2d 607 (Fla. 2d DCA 1985); Loveless v. Bryson,
460 So.2d 942 (Fla. 2d DCA 1984). However, we agree with defendant's second contention that the sentence was excessive. Section
948.06, Florida Statutes (1983), provides that upon revocation of a defendant's community control program, the trial court may "impose any sentence which it might have originally imposed before placing the ......
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2008 WL 482298
...n of the sentencing hearing generally constitutes a violation of the double jeopardy prohibitions of the United States and Florida constitutions. See Lippman v. State,
633 So.2d 1061, 1064 (Fla.1994); Justice v. State,
674 So.2d 123, 126 (Fla.1996). Section
948.06 sets forth the proper procedure for enhancing the conditions of probation. Under section
948.06, probation may not be enhanced until the probationer has been formally charged with a violation of probation, brought before the court, and advised of the charge....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2004 WL 314484
...ency or to notify the agency when the prisoner's release is imminent. Gethers v. State,
838 So.2d 504 (Fla.2003). A detainer is not an arrest, which may trigger a quick disposition of VOP charges. Both Florida Rule of Criminal Procedure 3.790(b) and section
948.06(1), Florida Statutes [1] contemplate that a probationer *165 be given an opportunity to be heard "as soon as practicable," on his or her VOP, but they contemplate the arrest of the probationer and his or her return to the court which granted the probation. See Diaz v. State,
737 So.2d 1203 (Fla. 5th DCA 1999). The remedies sought by Bonner in this case are premature and inappropriate. AFFIRMED. MONACO and TORPY, JJ., concur. NOTES [1] Section
948.06, relied upon by Bonner, provides: 1) Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or communit...
CopyCited 2 times | Published | Florida 4th District Court of Appeal
...vidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of compliance with the conditions under which suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may determine whether the conditions of the probation order have been violated....
...In the instant appeal appellant challenges the punishment rather than the statute. [3] The sentence imposed by the trial court was within the limits of the offense for which appellant was originally convicted. Moreover, under the terms and provisions of Section 948.06(1), Florida Statutes, F.S.A., the court is granted specific authority after adjudicating the probationer guilty of the offense charged to "impose any sentence which it might have originally imposed before placing the probationer on pro...
...[4] In asserting that eight years has elapsed from the original conviction and the date of the order appealed, portions of which time appellant was on probation, defendant seems to be suggesting that some recognition or credit be given for this eight year period. Section 948.06(2) states: "No part of the time that the defendant is on probation shall be considered as any part of the time that he shall be sentenced to serve." [5] We parenthetically note that although had this court been sitting as the trial cou...
CopyCited 2 times | Published | Supreme Court of Florida
...bationary sentence should be credited to a jail sentence later imposed by the trial court following revocation of that probation. The probation was revoked for a violation of its terms, and a three-year jail sentence imposed. The District Court held Section 948.06(2), Florida Statutes (1973), to be controlling, and refused to credit the six months' county jail time toward petitioner's newly imposed jail sentence....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 18458, 2009 WL 4282925
...In 1997, the supreme court held that time of probation or community control is calculated from the date it is imposed until the date of revocation. See Francois v. State,
695 So.2d 695 (Fla.1997); see also Jolly v. State,
699 So.2d 303 (Fla. 2d DCA 1997). The legislature amended section
948.06(l)(d) to toll a term of community control or probation when an affidavit of violation is filed....
...That amendment became effective on July 1, 2001. See id., § 2, at 913. In this ease, however, both Mr. Badger’s offense and the entry of the order of community control and probation occurred before the effective date of the amendment to the statute. As a result, the tolling provisions in section 948.06(l)(d) do not apply in this case....
...It may be that Mr. Badger could have agreed to waive credit for this term of community control in exchange for the favorable youthful offender sentence, but that did not occur in this case. . In Shenfeld , the Fourth District held that the 2007 amendments to section 948.06(1), Florida Statutes, which removed the requirement of issuance of a warrant to toll the probationary period, were procedural in nature and did not violate ex post facto principles....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 19768, 2009 WL 4877713
...ed on probation in March 2007. The court had the option to "revoke, modify, or continue the probation or community control or place the probationer into a community control program." Cowart v. State,
860 So.2d 1041, 1042 (Fla. 5th DCA 2003) (quoting §
948.06(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 22956390
...m Beach, for respondent. PER CURIAM. We deny the petition for writ of habeas corpus. In this case, petitioner is charged with a violation of probation. Bail pending revocation of a violation of probation is not a guaranteed constitutional right. See § 948.06(1), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1994 WL 397609
...ng in a total commitment of more than six years would thwart the purpose of the Act." Id. at 70. Section
958.14 of the Florida Statutes (Supp. 1990), as amended, effective October 1, 1990, operates to subject a youthful offender to the provisions of section
948.06(1), Florida Statutes, beyond the six-year cap of community control or probation....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1992 WL 193993
...nter as required. After a hearing, the trial court revoked probation, adjudicated guilt, and imposed sentence. The supreme court held: The trial court erred in this case by enhancing the terms of Clark's community control without notice and hearing. Section 948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control....
...Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 4682, 2010 WL 1404402
...rm of probation, further prosecution was barred. Counsel cited to the circuit court this court's decision in Freeman v. State,
980 So.2d 629 (Fla. 2d DCA 2008), as support for dismissing the new amended affidavit. Analysis Initially, we observe that section
948.06(2)(a), Florida Statutes (2007), provides three dispositional alternatives when a probationer admits the charged VOP: the court "may forthwith revoke, modify, or continue the probation." Although the statute does not mention "reinstate"...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2002 WL 506861
...sing 364 days in county jail. The standard of review is de novo. See Schaal v. State,
743 So.2d 1229 (Fla. 1st DCA 1999). The state correctly argues that upon a violation of probation, the trial court may "revoke, modify, or continue the probation." §
948.06(1), Fla....
...(2000). Griffin merely reaffirms this rule of law. If the court chooses to revoke probation, it "shall ... impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control." § 948.06(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 194744
...The state concedes that the order modifying Martin's probation must be vacated. Before probation can be enhanced by adding new conditions that a probationer must follow, a violation of probation must be formally charged and proven pursuant to the procedures in section 948.06, Florida Statutes (1995)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 5506, 2014 WL 1468091
...Shultz’s probation, the trial court could only impose a sentence of up to six years’ imprisonment. See §
958.14, Fla. Stat. (1981) (“A violation ... of the terms of a community control program shall subject the youthful offender to the provision[ ] of [section
948.06(1) ].”); §
948.06(1), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...owed by two years on probation, was clearly in violation of Fla. Stat. §
948.01(4), F.S.A. [1] The state in this case, however, argues that our previous construction of Section
948.01(4) in Williams and particularly in Hutchins is inconsistent with Section
948.06(1) [2] which provides that upon a violation of probation the court may "impose any sentence which it might have originally *745 imposed before placing the probationer on probation." The state cites the following language from Hutchins v....
...h sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court." [2] Section 948.06(1), in pertinent part, provides: "......
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 5361, 2011 WL 1431533
...tatutes (1989), for a first-degree felony punishable by life. [2] His original sentence was a probationary split sentence and, following revocation of probation, the trial court was authorized to impose any sentence it could have originally imposed. § 948.06(2)(b), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1993 Fla. App. LEXIS 4227, 18 Fla. L. Weekly Fed. D 1016
...Bradley appeals the sentences imposed upon revocation of probation because he was given credit for only the actual time he served in custody. Bradley argues that his gain time should not be forfeited because his original offenses were committed before the effective date of the amendments to sections
944.28(1) and
948.06(6), Florida Statutes (1989)....
...Bradley pleaded guilty to both charges and was sentenced to seven years' incarceration to be followed by five years' probation on each charge, to run concurrently. In order to determine whether Bradley is entitled to accrued gain time, it is necessary to review sections
948.06(6) and
944.28(1), Florida Statutes (1989) and the amendments to these sections, as well as case law interpreting the effective dates of the amendments. Sections
948.06(6) and
944.28(1) both address forfeiture of gain time upon revocation of probation or community control....
...Effective October 1, 1989, [1] section
944.28(1) was amended to permit DOC to forfeit gain time for violations of probation or community control. [2] Effective October 1, 1989, [3] the authority to forfeit gain time when probation or community control was revoked was extended to the trial court. Section
948.06(6), Fla. Stat. (1989). [4] Effective September 1, 1990, [5] forfeiture for a violation of control release was added. [6] Before section
948.06, Florida Statutes (1987) was amended to provide for forfeiture, the supreme court, in State v....
...he enactment. Toschlog does not refer to the date of the defendant's offense, only the date of sentencing. Also, the Fourth District, in Thomas v. State,
605 So.2d 1286 (Fla. 4th DCA 1992), addressed the effective dates of the amendments to sections
948.06(6) and
944.28(1). The court correctly stated, according to the Laws of Florida, that the effective date of the amendment to section
944.28(1) is October 1, 1989. However, the court, in our opinion, incorrectly stated that the effective date of the amendment to section
948.06(6) is September 1, 1990....
...1989), reversed the lower court's denial of gain time to a defendant upon revocation of probation on the authority of Green. The offenses in Carter occurred in 1985. The supreme court in dicta noted that the recent amendments to sections
944.28 and
948.06, Florida Statutes, to add revocation of probation to the list of circumstances justifying forfeiture of gain time did not apply because neither of the amendments were effective until September 1, 1990....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2012 WL 3870400, 2012 Fla. App. LEXIS 14989
...However, on remand, the trial court shall correct several scrivener’s errors. The order revoking Appellant’s probation must specify the specific conditions violated. Etienne v. State,
82 So.3d 1187 (Fla. 5th DCA 2012). Further, the scoresheet must be corrected to delete the twelve points assessed under section
948.06(8), Florida Statutes (2011)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 15427
...Hence, the State advances an erroneous argument in support of its contention that the original sentence was improper. As noted above, J.H. was originally sentenced to probation. Probation cannot be revoked or enhanced without first a determination that the probationer violated probation. § 948.06, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2008 WL 4057659
...See Kocher v. State,
651 So.2d 1288 (Fla. 3d DCA 1995). However, the probation statute expressly forbids a trial court from crediting any of the time a defendant serves on probation or community control towards a prison sentence imposed following revocation. §
948.06(3), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 14256, 2009 WL 3049002
...have some merit. However, we conclude that consistent with the opinion recently issued by this court in Sanders v. State,
16 So.3d 232 (Fla. 2d DCA 2009), the trial court properly itemized the prostitution-related counts as additional offenses. See §
948.06(1), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1993 WL 366880
...eds the 5-year statutory maximum for a 3d-degree felony. The state responds that Anderson admitted failing to pay supervision costs, and that the trial court imposed the sentence it could have originally imposed before placing Anderson on probation. § 948.06, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 13799
...An order reinstating, continuing, or modifying a defendant’s
probation or community control, entered following a violation of the terms,
is not, however, a “sentence” within the meaning of the statute. See State
v. Bell,
854 So. 2d 686, 689–90 (Fla. 5th DCA 2003) (citing section
948.06(1), Florida Statutes, which speaks in terms of trial court imposing
a sentence only if it revoked probation or community control, and holding
that “if the court chooses to modify or continue the original probation or
community control, it may do so and the state cannot appeal such action”);
see also State v....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 13751, 2009 WL 2951917
...and LEBAN, MARK KING, Associate Judge, concur. NOTES [1] Apparently, the trial judge signed a violation of probation warrant on December 7, 2007 which was filed on December 19, 2007 although no accompanying affidavit of violation of probation was filed. Section 948.06(1)(d), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 13629
...ardy. Id. The Florida Supreme Court agreed that there had been such a constitutional violation, concluding the “added conditions ... enhanced the terms of [the defendant’s] original probationary sentence.” Id. at 1063-64 . The court pointed to section
948.06, Florida Statutes (1987), which “ ‘provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.’ ” Id. at 1064 (quoting Clark v. State,
579 So.2d 109, 110 (Fla.1991)); see also Fla.R.Juv.P. 8.120(a) (tracking §
948.06)....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 15357
...Now, Baker urges that the trial court erred in failing to make further inquiry into the factual basis for the plea, as Baker’s response indicated a possible defense to the charge of larceny which Baker should have knowingly and intelligently waived. The trial court did not err. Probation is a matter of grace, not right. Section 948.06(1), Florida Statutes, provides that the trial court shall advise a probationer of the charge of violation, and if the charge is admitted to be true may forthwith revoke probation....
CopyCited 1 times | Published | Supreme Court of Florida
...sessed.
For violations occurring on or after March 12, 2007, if the community sanction
violation that is not based upon a failure to pay fines, costs, or restitution is
committed by a violent felony offender of special concern as defined in s.ection
948.06, Florida Statutes, twelve12 community sanction violation points must be
assessed or if the violation results from a new felony conviction, 24 community
sanction points must be assessed....
...apply credit for time served on case/count . (Offenses committed between October 1,
1989, and December 31, 1993.)
The Court deems the unforfeited gain time previously awarded on the above case/count
forfeited under section
948.06(7), Florida Statutes.
The Court allows unforfeited gain time previously awarded on the above case/count.
(Gain time may be subject to forfeiture by the Department of Corrections under section
944.28(1), Florida St...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1994 WL 583748
...However, both parties have misplaced their reliance on obsolete authority. The supreme court explained in Bradley v. State,
631 So.2d 1096 (Fla. 1994), that State v. Green,
547 So.2d 925 (Fla. 1989), and Barfield v. State,
599 So.2d 259 (Fla. 4th DCA 1992), have been superseded by section
948.06(6), Florida Statutes (1989)....
...obation or community control from a state correctional institution. This subsection does not deprive the prisoner of his right to gain-time or commutation of time for good conduct, as provided by law, from the date on which he is returned to prison. § 948.06(6), Fla. Stat. (1989). This applies to offenses committed on or after October 1, 1989. See Ch. 89-531, § 19, Laws of Fla. Appellant's offenses occurred after October 1, 1989. Thus section 948.06(6) applies in this case....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1580432
...he had been serving probation, *462 although Shiflett had never admitted the violations. A court may revoke probation if the probationer admits the violation, or, if not admitted, after it has given the accused an opportunity to be fully heard. See § 948.06, Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 915, 2008 Fla. LEXIS 2207, 2008 WL 4950074
...The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served on case/count _____. (Offenses committed between October 1, 1989, and December 31, 1993) ____ The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6)....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6469
under which suspension of sentence was granted. Section
948.06(1) simply provides for an informal hearing
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...comment the revocation of Espinoza-Brito's probation and the sentence imposed. We
remand, however, for the correction of two errors that are apparent on the face of the
record. First, upon revocation, the trial court entered a new, superfluous judgment.
Pursuant to section 948.06(2)(e), Florida Statutes (2016), "If ....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 6965, 2009 WL 1425216
...Springer,
965 So.2d 270 (Fla. 5th DCA 2007). However, the constitutional guarantees of due process and protection from double jeopardy prohibit a trial court from revoking or enhancing probation without first determining the probationee violated probation. See §
948.06, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1992 WL 106957
...robation for a criminal offense the judge may return to "square one" and "impose any sentence it originally might have imposed, with credit for time served and subject to the guidelines recommendation."
531 So.2d at 164. This is consistent *318 with section
948.06(1), Florida Statutes (1989) which provides: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjudged...
CopyCited 1 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 279, 2015 Fla. LEXIS 1121, 2015 WL 2401261
...to prove by clear and
convincing evidence that he or she does not have the present resources
available to pay restitution or the cost of supervision despite sufficient
bona fide efforts legally to acquire the resources to do so.’ §
948.06(5), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1235916
...ce on violation of probation. Upon revocation of a defendant's probation, a trial court is "free to impose any sentence it may have originally imposed before placing him on probation." Mearns v. State,
779 So.2d 282, 283 (Fla. 2d DCA 1998); see also §
948.06(2)(b), Fla. Stat. (2004) (providing, upon revocation of probation, for the trial court to "impose any sentence which it might have originally imposed before placing the probationer on probation"). The Fourth District cited section
948.06(2)(b) and Mearns in Williams v....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...ed probation violation
by appellee, the defendant below, Daniel Rincon; and (ii) the trial court’s
contemporaneous termination of Rincon’s probation. The State maintains that the
trial court neglected to abide by the procedural imperatives of section 948.06(8) of
the Florida Statutes....
...and taken a piece of jewelry (with a
value of under $100) from her. He received a sentence of four years of probation.1
The offense of battering a pregnant woman qualified Rincon as a “violent felony
offender of special concern,” pursuant to section 948.06(8)(b)1....
...terminating
Rincon’s probation “unsuccessfully.”
Analysis
Because Rincon qualified as a “violent felony offender of special concern,”
the trial court was obligated to follow the procedures of section 948.06(8). While
3
section 948.06(2)(c) authorizes the trial court to dismiss a probation violation,
section 948.06(8), by its express provisions, controls over section 948.06(2)(c). §
948.06(8)(a), Fla. Stat. (2018). Section 948.06(8)(d) provides:
The court shall not dismiss the probation or community control
violation warrant pending against an offender enumerated in this
paragraph without holding a recorded violation-of-probation hearing
at which both the state and the offender are represented.
§ 948.06(8)(d), Fla....
...nducts this
evidentiary hearing, the trial court determines the violent felony offender of special
concern has violated probation,2 the trial court must make a series of written
findings as to whether the offender poses a danger to the community. §
948.06(8)(e)1., Fla....
...State,
207 So. 3d 379, 384 (Fla. 5th
DCA 2016). If the trial court finds that the offender poses a danger to the
community, then the trial court must revoke probation and sentence the offender to
the statutory maximum or longer, if the law permits. §
948.06(8)(e)2.a., Fla Stat.
(2018). If, however, the trial court finds that the offender does not pose a danger to
the community, then the trial court “may revoke, modify or continue the probation.”
§
948.06(8)(e)2.b.
2If, at this evidentiary hearing, the trial court finds that the violent felony offender
of special concern has not violated probation, the trial court presumably would
dismiss the violation warrant. §
948.06(8)(d), Fla. Stat. (2018).
4
The trial court did not follow the procedural requirements of section
948.06(8)(d) and (e).3 Whatever the trial court observed in Rincon’s personal
development during the previous two years required a deeper exploration in a formal
hearing and the requisite written findings.4
Therefore, we reverse the order on appeal and remand for further proceedings
to be conducted in accordance with section
948.06(8).
Reversed and remanded with instructions.
3We express no opinion as to whether the parties in this case could have fashioned
a plea agreement that would have pre-empted trial court compliance with the
procedural dictates of section
948.06(8).
4 We find no merit in Rincon’s argument that the trial court’s dismissal of his
probation violation and termination of his probation occurred because the trial
court participated in a plea negotiation....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...In the absence of a sentence, there was no
requirement seven months later, when Mr. Triatik was actually
sentenced, to offset his jail credit across all of the counts. At that
point, the trial court was free to impose any sentence which it
might have originally imposed, see § 948.06(2)(e), including
imposing consecutive sentences with the application of jail credit
limited to count 1....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2017 WL 2492046, 2017 Fla. App. LEXIS 8549
...General, for Appellee.
PER CURIAM.
Oscar Glenn appeals an order revoking his probation. He argues among other
things that the trial court erred by not providing written reasons for its finding that
he poses a danger to the community under section 948.06(8)(e), Florida Statutes.
The trial court orally made the statutorily required factual findings, so we affirm the
revocation of probation....
...ther two counts, to run concurrent
with the sentence for count one. Although the trial court orally stated several reasons
for its decision to revoke Appellant’s probation, it did not reduce any of them to
writing. This appeal followed.
Section 948.06(8)(e)1, Florida Statutes, requires that a trial court make
written findings regarding whether a violent felony offender of special concern poses
a danger to the community....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1993 WL 186584
...Davis was entitled to earned gaintime as part of the time credited against the sentence imposed after revocation of probation which was part of a probationary split sentence. State v. Green,
547 So.2d 925 (Fla. 1989). Although the State argues that the legislature's subsequent amendment to section
948.06, Florida Statutes (Supp....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 2470130, 2012 Fla. App. LEXIS 10587
...In K.L.T., an affidavit alleging a violation of probation was filed and a warrant issued. The child was not arrested on the warrant until after the probation had terminated. Id. The Fifth District held that, unlike the statutory provisions governing adult probation, especially section 948.06(l)(d), Florida Statutes (2009), there is no provision in either the statutes or the Florida Rules of Juvenile Procedure that allows for a tolling of the probationary time period....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 WL 8183044
...Nance, 221 P.3d 428, 431 (Colo.App.2009) (“[P]ro-bation revocation is not a conviction....”). To the extent that conviction is considered to occur upon adjudication, Smith,
34 So.2d at 534 , and a defendant is first adjudged guilty for the underlying offense upon revocation of probation, §
948.06(1), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 9881, 2011 WL 2493700
...If tolling is not applicable to juvenile probation, the trial court had no jurisdiction to violate Petitioner and impose an additional commitment after probation expired. As Petitioner contends, there is no provision in the juvenile rules or statutes for tolling probation, unlike in adult cases. See Fla. Stat. § 948.06 (d)(2009)....
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 304, 2016 Fla. LEXIS 1317, 2016 WL 3444016
...interpreted in its common, ordinary usage.” Id.
A violation of probation may result in the revocation, modification, or
continuation of probation; additionally, a probationer may be placed under
community control, which is a more intensive form of supervision. § 948.06(2)(a)
& (e), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 9110, 2010 WL 2509465
...Willy Palmer, Okeechobee, pro se. No appearance required for appellee. PER CURIAM. We affirm the trial court's order summarily denying appellant's rule 3.850 motion for postconviction relief. Appellant claimed that the trial court's application of the 2001 amendment to section 948.06(1), Florida Statutes was retroactive in violation of the prohibition against ex post facto laws....
...1st DCA 2004) and Harris v. State,
893 So.2d 669 (Fla. 1st DCA 2005) regarding the crucial date, we certify a conflict. [1] See Shenfeld v. State,
14 So.3d 1021, 1024 (Fla. 4th DCA 2009) (holding that retroactive application of the 2007 amendment to section
948.06(1)(d), Florida Statutes, did not constitute an ex post facto violation). [2] Affirmed. TAYLOR, MAY and DAMOORGIAN, JJ., concur. NOTES [1] In Harris v. State , the First District reiterated its holding from Frye that the 2001 amendment to section
948.06(1), Florida Statutes, would violate ex post facto protections if applied to sentences of persons whose offenses were committed before the effective date of the amendment (emphasis added).
893 So.2d at 670. [2] This court in Shenfeld previously certified a conflict with the First District's decisions in Frye and Harris with respect to whether retroactive application of amendments to section
948.06, Florida Statutes constituted an ex post facto violation under the second prong of the ex post facto test.
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 9540, 2016 WL 3421558
...2d DCA 2011); Dawkins v.
State,
936 So. 2d 710, 712 (Fla. 2d DCA 2006).
[T]he circuit court must enter a judgment on a violation of
probation "unless [the defendant] has previously been
adjudged guilty." See §
948.06(2)(e), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1457737
...rrent terms of ten years in prison. Mr. Mikell's rule 3.850 motion alleges that defense counsel was ineffective when he failed to apprise the sentencing court of its discretion to reinstate his client's probation following violation as authorized by section 948.06(1), Florida Statutes (2002)....
...I'm not allowed to, legally." The defense attorney stood silent and did not attempt to correct the court's misimpression. When probation is violated, the court has the option to "revoke, modify, or continue the probation or community control or place the probationer into a community control program." § 948.06(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1457681
...licts with Reed because we are not treating fundamental error as inherently harmful but are placing a burden of persuasion upon the appellant to establish that the alleged error is harmful before we declare the error to be fundamental. NOTES [1] See § 948.06(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1996 WL 365788
...of a probation order and then challenge the legality of the probation order after violation of probation. We agree. Under the probation statute, upon violation of probation the trial court may revoke probation and impose any sentence allowed by law. § 948.06(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 10356, 2009 WL 2243860
...o its reinstatement). The law is clear that, with very little exception, time served while on community control may not be credited against incarceration. In Young v. State,
697 So.2d 75, 77 (Fla.1997), the Florida Supreme Court held that: [S]ection
948.06(2), prohibits a court from crediting probation or community control toward a sentence of incarceration. Specifically, section
948.06(2) provides that no part of the time a defendant is on probation or in community control shall be considered as any part of the time that he shall be sentenced to serve....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 11606, 2011 WL 3112065
...During the next twelve-month period, two affidavits of violation were filed and the trial court twice modified — but never extended — Cubero’s probation. The second modification order was entered on March 25, 2010, thus ending the tolling period invoked by the filing of the second affidavit of violation. See § 948.06(l)(d), Fla....
...In modifying Cubero’s probation either time, the trial court could have extended his misdemeanor probation by the period of time his probation had been tolled, even though it would have exceeded the maximum sentence of twelve months for a first-degree misdemeanor. See § 948.06(2)(f), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 11191, 2015 WL 4497724
...to act outside or in excess of its jurisdiction. English v. McCrary,
348 So. 2d 293, 296
(Fla. 1977). The trial court's jurisdiction was invoked when "the processes of the court
[were] set in motion for revocation or modification of the probation pursuant to Section
948.06, F.S." Carroll v....
...it is
signed by a judge. §
901.02(4), Fla. Stat. (2014); see also Morgan v. State,
757 So. 2d
618, 619 n.1 (Fla. 2d DCA 2000).
-4-
continued or modified Mr. Daniels' probation. Id. We explained that section
948.06(2)(a), Florida Statutes (2007), provides only three dispositional alternatives
when a probationer admits a charged violation of probation—a trial court may revoke,
continue, or modify the probation....
...n
over a probationer when a probationer admits to violating orders of probation and the
trial court revokes a term of probation.
A trial court's jurisdiction to revoke a term of probation or community
control is limited by statute. Section 948.06(1), Florida Statutes (1995), states:
Whenever within the period of probation or community
control there are reasonable grounds to believe that a
probationer or offender in community con...
...the court have been set in motion for revocation." Slingbaum v. State,
751 So. 2d 89,
89 (Fla. 2d DCA 1999) (quoting State v. Hall,
641 So. 2d 403, 404 (Fla. 1994)).
But Mr. Hennig's probation did not expire. His term of probation was
revoked, and section
948.06(1) authorized the trial court to "impose any sentence which
it might have originally imposed" before it first placed Mr....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 10801, 2010 WL 2867100
...n of her probation. Of course, the law generally allows the trial court to impose any sentence that could have originally been imposed on the charge, up to the statutory maximum penalty, upon finding a willful and substantial violation of probation. § 948.06(2)(e), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2004 WL 1562549
...State,
633 So.2d 482 (Fla. 1st DCA 1994) (stating that, where a defendant is resentenced following violation *440 of probation, credit for time served does not include forfeited gain time); see also Tillman v. State,
693 So.2d 626 (Fla. 2d DCA 1997); §
948.06(6), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...There is no question that the law holds the state to a less stringent burden of proof in a probation revocation proceeding than it does in a criminal trial. The probation violation proceeding is actually a deferred sentencing hearing, Delaney v. State,
190 So.2d 578 (Fla. 1966); Section
948.06(1), Florida Statutes (1981), and although the issues of fact in both proceedings appear identical, the probation review does not subject a defendant to jeopardy....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 WL 116872
...public by deterring further criminal conduct, and to protect the crime victim's rights. See Woodson v. State,
864 So.2d 512, 516 (Fla. 5th DCA 2004). A violation of probation generally results in some form of additional punishment for the offender. §
948.06, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2007 WL 397423
...Cason v. State,
604 So.2d 928 (Fla. 3d DCA 1992)(where an adult defendant allegedly violated condition of probation and there is no indirect criminal contempt statute, the exclusive method for charging and trying the alleged violation was provided for in section
948.06, Florida Statutes (1991) [violation of probation or community control], rather than by indirect criminal contempt)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2519, 2011 WL 680410
...The trial court's determination that appellant was not guilty of a willful and substantial violation of probation is amply supported by the record. Because the trial court did not find Mr. Lindsay's violation willful and substantial, it was without authority to revoke his probation or to adjudicate him guilty. See § 948.06(2)(e), Fla....
...(2009) ("If such probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty...."). See also Lippman v. State,
633 So.2d 1061, 1064 (Fla.1994). Section
948.06, Florida Statutes (1987), "provides the sole means by which the court may place additional terms on a previously entered order of probation or community control." Clark v. State,
579 So.2d 109, 110 (Fla.1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11; §
948.06(1), Fla.Stat....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2214, 36 Fla. L. Weekly Fed. D 397
...supervision is no longer under the controlling arm of the state,” and that “absconding from probation tolls the period”). Franklin’s probationary period indeed was tolled, but not strictly because he absconded from supervision. Rather, under section
948.06(1), Florida Statutes (2002), “[u]pon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s.
901.02, the probationary period is tolled until the court enters a ruling on the violation.” A warrant issues “when signed by the magistrate.” §
901.02(1), Fla. Stat. (2002). Pursuant to section
948.06(1), then, Franklin’s probationary period was tolled for roughly 32 months from April 2, 2003, when the court issued the first VOP arrest warrant, to December 14, 2005, when the court revoked probation and ordered community control....
...That Franklin absconded from supervision may explain the substantial delay between issuance of the VOP arrest warrant in 2003 and Franklin’s eventual apprehension in 2005. But we see no reason to address whether there is evidence of absconding when section 948.06(1) plainly states the probationary period tolls from the time the warrant issues to the time the court rules on the VOP, and the record reflects the relevant dates....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2004 WL 330876
...ecided without an evidentiary hearing to ascertain whether there was such a plea agreement and establish what it provided. Rule 3.800 does not allow evidentiary hearings on motions to correct illegal sentences thereunder. My first reason is based on section 948.06(1), [1] authoritatively construed in Poore v....
...In this case, the record on its face supports the sentences. Shaw v. State,
826 So.2d 515 (Fla. 4th DCA 2002), is an inexplicable eccentricity. The record on its face there did not support a conclusion that the sentence was illegal, so reversal was improper under section
948.06(1) and Poore....
..., upon remand, to treat the motion now as an application under rule 3.850 and to proceed accordingly. Because the violation of probation eliminated the plea agreement, however, there is no reason to do so. The trial court must be affirmed. NOTES [1] § 948.06(1), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2014 WL 594358, 2014 Fla. App. LEXIS 2093
...nty jail. Consistent with this court’s recent decision in State v. Currilly,
126 So.3d 1244 (Fla. 1st DCA 2013), we agree with the state that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section
948.06(2)(b) & (e), Florida Statutes (2012)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 Fla. App. LEXIS 1547, 2013 WL 376054
...of section
800.04, Florida Statutes (2007). The court sentenced Jeffers to two years in prison followed by ten years of sex offender probation. On March 17, 2011, Jeffers admitted to violating the terms of his probation. After a hearing pursuant to section
948.06(8)(d), Florida Statutes (2010), the court designated Jeffers as a violent offender of special concern and sentenced him to 115.5 months’ incarceration followed by 64.5 months’ probation. Jeffers raises two issues on appeal. First, he contends that the trial court erred in designating him as a violent offender of special concern because he committed the qualifying offense before section
948.06(8) became effective....
...State,
899 So.2d 1257, 1259 (Fla. 4th DCA 2005). Jeffers relies on this court’s opinion in Cherington v. State,
24 So.3d 658 (Fla. 2d DCA 2009), to argue that he does not qualify as a violent offender of special concern. In Cherington , this court stated in dicta that section
948.06(8) became effective on October 1, 2007. Id. at 663 . Jef-fers argues that he committed a qualifying offense on September 22, 2007, a week prior to the effective date of the statute. However, as the State correctly argues in its brief, it is clear that section
948.06(8) became effective on March 12, 2007, and that this court misstated the effective date of the statute in its previous opinion. See ch.2007-2, § 13, at 105, Laws of Fla. Here, Jeffers committed a qualifying of *39 fense 1 on September 22, 2007, six months after the effective date of section
948.06(8), and was on probation related to this offense at the time of the revocation proceeding. Pursuant to the statute, a violent offender of special concern is “a person who is on felony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act.” §
948.06(8)(b)(l)....
...tence with the amount of time he previously served on probation. Affirmed in part, reversed in part, and remanded. SILBERMAN, C.J., and CASANUEVA, J., Concur. . Lewd and lascivious battery in violation of section
800.04 is a qualifying offense under section
948.06(8)(c)(5)....
CopyCited 1 times | Published | District Court of Appeal of Florida
probationary period pursuant to the version of section
948.06, Florida Statutes in effect at the time of
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1996 WL 691405
...The appellant further contends that the trial court erred in not allowing him credit for the time served on probation in the original cases. However, because the trial court did not impose any new period of probation upon revocation of probation, the time originally served on probation is not credited. § 948.06(2), Fla.Stat....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...1st DCA 1978); Page v. State,
363 So.2d 621 (Fla. 1st DCA 1978). Thereafter the court modified his probation and extended it six months. The condition which required restitution was revoked and appellant was required to donate one hundred hours to the Salvation Army. Section
948.06, Florida Statutes (1977) is the only authority for extension of the period of probation....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
2016), in which the Fourth District explained: Section
948.06(1)(f) is clear that a warrant under section
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 21989, 2012 WL 6682018
...— two years probation. Within two months, however, as found by the trial court in a now-uncontested ruling, Martinez violated his probation in several material respects. Because aggravated battery is a qualifying offense under the Anti-Murder Act, § 948.06(8)(c)3., Fla. Stat. (2009), 1 and he was also found to be— again, without present dispute — an unreasonable danger to the community, § 948.06(8)(e)l., Fla. Stat. (2009), and thus rendered a “violent felony offender of special concern,” the court was called upon to sentence him under section 948.06(8)(e)2.a., Florida Statutes (2009), which provides: If the court has found that a violent felony offender of special concern [like Martinez] poses a danger to the community, the court shall revoke probation and shall sentence the offender up to the statutory maximum, or longer if permitted by law....
...See Gracia v. State,
98 So.3d 1243, 1245 (Fla. 3d DCA 2012) (citing Doctor v. State,
677 So.2d 1372 (Fla. 3d DCA 1996) (special concurrence), approved,
698 So.2d 1224 (Fla.1997)). Sentence reversed and remanded for re-sentencing under the guidelines. . Section
948.06(8)(c)3....
...current 12 points. Fla. S. Judiciary Comm., CS for SB 146 (2007) Staff Analysis (Feb. 19, 2007) (on file with State Archives of Florida). . While the trial judge relied on the fact that the Criminal Punishment Code was not specifically referenced in section 948.06(8)(e)2.a., the legislature has provided, contrariwise, when the guidelines are not to be applied that they are specifically excluded from consideration....
...t Code); §
775.082(8)(d), Fla. Stat. (2009) (excepting capital felonies from application of the Criminal Punishment Code). Similarly, we are unimpressed with the defense’s reliance on its serendipitous discovery on appeal that an earlier draft of section
948.06 contained a specific reference to the code which was omitted in the final version....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2002 WL 31870380
...The appellant has filed a pro se brief in which he argues that the sentences are illegal. The defendant contends that the sentences imposed upon revocation of probation cannot exceed the original two-year probationary term. The defendant is incorrect. See § 948.06(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2008 WL 5352934
...at the probationer, Levi Kern, was now serving ten years in prison on unrelated charges. We find no abuse of discretion in the circuit court's decision to dismiss the charge of violation of probation and to discharge Mr. Kern from his probation. See § 948.06(2)(d), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1993 WL 533790
...The appellant is entitled to receive not only credit for time served but also any earned gain time accrued under the three-and-one-half-year sentence pursuant to State v. Green,
547 So.2d 925 (Fla. 1989). The appellant's offense was committed before the effective date of section
948.06(6), Florida Statutes (Supp....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2002 WL 31840846
...State,
605 So.2d 562, 563 (Fla. 2d DCA 1992), the court held that the application of the amended statute would constitute an ex post facto violation: The amended version of section
958.14 operates to subject a youthful offender to the general provisions of section
948.06(1) beyond the normal six-year cap for such an offender when the offender commits a substantive violation of probation or community control....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...2d 1227, 1234 (Fla. 2008) (quoting
Morrissey,
408 U.S. at 484).
II. Revocation
After Mr. Turner admitted to violating community control, the trial court had
to consider whether to revoke, modify, or continue community control. See §
948.06(1).
This decision is, itself, a separate process from the violation stage of the hearing....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 13209, 2016 WL 4540552
...Minimum mandatory sentences do not apply to an initial youthful offender sentence. Mendez v. State,
835 So.2d 348, 349 (Fla. 4th DCA 2003). Sentencing of a youthful offender upon revocation of probation or community control supervision is governed by sections
948.06 and
958.14, Florida Statutes. Section
958.14 provides that “[a] violation ... of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06.” §
958.14, Fla. Stat. (2005). 1 In turn, section
948.06 provides, in part: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control. §
948.06(2)(b), Fla. Stat. (2005) (emphasis added); see also §
948.06(2)(e), Fla....
...the youthful offender cap provisions. Id. Our decision in Goldwire did not signify that the trial court could choose not to impose a minimum mandatory sentence if it exercised its discretion to sentence the defendant above the youthful offender cap provisions under section 948.06(2), Florida Statutes....
...ling because it decided the issue of a sentencing cap, and did not decide the issue of minimum mandatory sentencing. See id. at 556-57. The Second District interpreted the language of section
958.14, Florida Statutes, incorporating the provisions of section
948.06, Florida Statutes, and concluded: In our view, this unqualified statement of the sanctions to which a youthful offender who commits a substantive violation is exposed reflects the legislature’s intent that such offenders lose the benefit of the original sentencing limitations of the Youthful Offender Act....
....04(2), Florida Statutes (assuming a term for a cap sentence is still available), or to impose any. sentence it could have imposed when the defendant was originally sentenced, regardless of the *490 defendant’s youthful offender designation, under section 948.06(2), Florida Statutes....
...E A DEFENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS
958.14 AND
948.06(2), FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE? Affirmed....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 14132, 2012 WL 3629039
...robation or community control and following issuance of a warrant under s.
901.02, a warrantless arrest under this section, or a notice to appear under this section, the probationary period is tolled until the court enters a ruling on the violation. §
948.06(1)®, Fla....
...r standard with the overarching consideration being protection of the probationer’s minimal due process rights.” Id. The Fifth District concluded that any error in Smartmays involved noncompliance with a provision of the pre-amendment version of section 948.06(1)....
...een considered fundamental, particularly in a probation revocation context.” Id. Similarly, in Smith v. State,
917 So.2d 409, 410 (Fla. 5th DCA 2006), the problem was that the VOP affidavit, although verified, did not meet the formal requisites of section
948.06(1)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1856840
...Nevertheless, the trial court found that Perez violated his probation by failing to report as instructed between 4 p.m. and 5 p.m. on July 19, 2000. Based upon its finding, the trial court modified Perez's probation by extending it for one year. Pursuant to section 948.06, Florida Statutes (2000), the trial court may modify the terms and conditions of probation by extending the probationary period upon notice of the alleged violation, a hearing, and proof that the defendant has violated the terms and conditions of probation....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 3326347, 2012 Fla. App. LEXIS 13573
...LaFave argues that sections
948.04(3) and
948.05 specifically preclude “no early termination” provisions from being binding, citing Clark v. State,
579 So.2d 109, 109-111 (Fla.1991). However, Clark dealt with specific procedures for enhancing terms of a previously imposed probation pursuant to section
948.06....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2006 WL 889163
...See Fla. R.Crim. P. 3.704(d)(25). If so, attachment of the scoresheet and a ruling denying relief would suffice. AFFIRMED in part, REVERSED and REMANDED. GRIFFIN and THOMPSON, JJ., concur. NOTES [1] See §
827.03(1) and (3)(c), Fla. Stat. (2005). [2] §
948.06(2)(e), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 3514, 2009 WL 1097927
...Similarly, the county court was precluded from imposing incarceration upon Finney’s revocation of probation because it could not have imposed incarceration for the underlying conviction. See Tur v. State,
797 So.2d 4, 6 (Fla. 3d DCA 2001); Harris,
773 So.2d at 629 . As the court acknowledged in Tur , section
948.06(1), Florida Statutes (1999), limits a court’s sentencing choices upon a revocation of probation to “ ‘any sentence which it might have originally imposed before placing the probationer or offender on probation.’ ” Tur,
797 So.2d at 6 ....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 WL 1838335
...Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See § 948.06(1), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 2007 WL 1147076
...n
921.0024(1)(b), Florida Statutes, to mandate the assessment of community sanction violation points for violations occurring on or after March 12, 2007, of probation or community control by a violent felony offender of special concern as defined in section
948.06, Florida Statutes (2006)....
...ust be assessed. For violations occurring on or after March 12, 2007, if the community sanction violation that is not based upon a failure to pay fines, costs, or restitution is committed by a violent felony offender of special concern as defined in s. 948.06, twelve community sanction violation points must be assessed or if the violation results from a new felony conviction, 24 community sanction points must be assessed....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 13379, 2010 WL 3488796
...warrant was issued on the same day. The State concedes it was one day too late. See Collier v. State,
16 So.3d 340 (Fla. 4th DCA 2009) (stating that 5-year probation period starting December 19, 2002, expired on December 18, 2007). We have construed §
948.06(1) to require filing of the papers and issuance of the arrest warrant before the period of probation has expired....
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 14291, 2005 WL 2179788
...for the misdemeanor charge. See Aponte v. State,
896 So.2d 836 (Fla. 1st DCA 2005). Although the state suggests that the appellant’s probationary term may have been tolled while the appellant was incarcerated on an unrelated charge and absconded, §
948.06(1), Fla....
CopyPublished | Florida 1st District Court of Appeal
...Even so, the trial court denied the
motion.
Law
The issue on appeal involves statutory interpretation and
application of the law, which are reviewed de novo. Managed Care
of N. Am., Inc. v. Fla. Healthy Kids Corp.,
268 So. 3d 856, 859 (Fla.
1st DCA 2019). Section
948.06, Florida Statutes (2020), states in
relevant part:
(1) ....
...n. Id. On appeal, the
defendant alleged that the trial court lacked jurisdiction to
consider the third affidavit of violation of probation. 1 Id. The State
responded that the defendant’s probationary period had been
extended in accordance with the section 948.06(1) for the amount
of time it took to address the defendant’s first and second violations
of probation....
...authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
2 Although trial courts often use the term “reinstate”
probation, the statute offers only three options: revocation,
modification, or continuance. See § 948.06, Fla....
CopyPublished | Florida 2nd District Court of Appeal
...VOP case sat silent until Canchola's 2016 arrest pursuant to the outstanding VOP arrest
warrant issued by the trial court on August 13, 2015.
Canchola thereafter filed a motion to dismiss violation of probation for lack
of subject matter jurisdiction, relying on section 948.06(1)(f), Florida Statutes (2015),
and Mobley v....
...State,
197 So. 3d 572 (Fla. 4th DCA 2016). At the hearing on Canchola's
motion to dismiss, Canchola argued that the filing of the August VOP affidavit did not toll
his probationary term because it failed to comply with the tolling requirements set forth
in section
948.06(1)(f)....
...1Although the amended violation of probation affidavit is dated August 26,
2015, it was not stamped as "FILED FOR RECORD" until September 9, 2015, a week
after Canchola's term of probation was set to expire.
-3-
period under section 948.06(1)(f), the probationary period was nevertheless tolled
because the amended VOP affidavit added a charge that Canchola had absconded
from supervision during his probationary period.
The trial court first acknowledged that "if we were riding under [s]ection
948.06, . . . the statute requires under subsection (1)(f) certain activities that have to
happen for the purposes of tolling the statute." The trial court continued: "But the
absconsion tolling doesn't ride under section 948.06. It rides under the existing case
law . . . that was developed prior to [s]ection 948.06 being amended as it has been over
the last few years ....
...because it was filed after his probationary term had expired, leaving the trial court
without subject matter jurisdiction over the amended VOP affidavit. He contends that
because the amended VOP affidavit undisputedly did not fall within any of the limited
circumstances set forth in section 948.06(1)(f)'s tolling provision, the trial court erred by
denying his motion to dismiss.
-4-
As an initial matter, a probationer absconds when he removes himself
from "the con...
...5th DCA 1991)
("[P]robation is not normally suspended or tolled retroactively unless the probationer
absconds from supervision."). Thus, absent a statutory or common law basis to toll the
probationary period, the trial court loses subject matter jurisdiction upon the expiration
of the probationary sentence. See § 948.06(1)(f) (listing three circumstances where
tolling is permitted under the statute); Williams v....
...jurisdiction over a probationer beyond the expiration of the originally imposed
probationary term. First, the legislature has set forth three situations where a
probationary term may be tolled until the trial court enters a ruling on the violation.
See §
948.06(1)(f). All three situations require the filing of a VOP affidavit. That VOP
affidavit is followed by (1) the "issuance of a warrant under s.901.02," (2) "a warrantless
arrest under [section
948.06]," or (3) "a notice to appear under this section." See
§
948.06(1)(f).2
Next, our common law recognizes that a probationer's absconsion from
supervision during his probationary term, apart from section
948.06(1)(f)'s tolling
provision, automatically tolls his term. See Williams,
202 So. 3d at 921; see also
Badger v. State,
23 So. 3d 813, 817 (Fla. 2d DCA 2009) (explaining the long existence
2We note that section
948.06(1)(f) has been amended since the 2015
version applicable here, but the three avenues to toll a probationary term have not
changed....
...Instead, only the arrest warrant
requirement has changed. That is, under the 2015 version of the statute, a warrant
must have been issued under a probable cause standard set forth in section
901.02,
whereas the 2018 version omits the reference to section
901.02. Compare §
948.06,
Fla. Stat. (2015) (permitting the tolling of the probationary term "[u]pon the filing of an
affidavit alleging a violation of probation or community control and following issuance of
a warrant under s. 901. 02" (emphasis added)), with §
948.06(1)(f), Fla....
...on, which is
an independent basis for tolling his probationary term. Id. It explained that its Mobley
decision involved the applicability of the statutory tolling provision set forth in section
-9-
948.06(1)(f), which is distinct from the tolling of a probationary sentence under Florida's
common law. Id. at 920. Its Mobley decision, the Fourth District explained, turned on
the State's failure to satisfy the requirements for tolling set forth in section 948.06(1)(f);
namely, it failed to issue the proper arrest warrant under the statute....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 8640, 1994 WL 478539
...iolation. State v. Green,
547 So.2d 925 (Fla.1989); State v. Carter,
553 So.2d 169 (Fla.1989); Brown v. State,
632 So.2d 699 (Fla. 1st DCA 1994); Ferguson v. State,
594 So.2d 864 (Fla. 5th DCA 1992). Though State v. Green has since been overruled by section
948.06(6), Florida Statutes (1989), Green continues to govern where the offenses underlying the probation violation occurred prior to the effective date of the statute....
CopyPublished | Florida 4th District Court of Appeal
...Importantly, however, if the defendant
admits to the allegations contained in the amended affidavit (which
alleges more than a failure to pay costs, fines, or restitution), the
trial court must, before revoking, modifying or continuing
probation, first hold a hearing pursuant to section 948.06(8)(e), to
determine and make written findings whether the defendant poses
a danger to the community.
Id....
CopyPublished | Florida 5th District Court of Appeal | 2011 WL 4716330
...Hence, the State advances an erroneous argument in support of its contention that the original sentence was improper. As noted above, J.H. was originally sentenced to probation. Probation cannot be revoked or enhanced without first a determination that the probationer violated probation. § 948.06, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 9384, 1994 WL 531282
...was not entitled to 369 days credit for time not served due to early release. On October 20, 1993, the trial court granted the state’s motion and entered a modified sentence to reflect a reduction in the defendant’s jail credit time. Generally, section 948.06(6), Florida Statutes (1991) gives the trial court discretion not to award gain time credit as part of “credit for time served.” This can be achieved merely by forfeiting a defendant’s gain time at the time probation is revoked....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 14536, 2003 WL 22213581
...BROWNING, J., CONCURS; PADOVANO, J., Concurring in the Result with Opinion. . [O]nce the court revokes probation ..the court resentences the offender on the original charge, and may "impose any sentence which it might have originally imposed before placing the probationer ... on probation....” § 948.06(1), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 9517, 1993 WL 365672
...ved prior to resentencing. State v. Green,
547 So.2d 925 (Fla.1989). 1 Sentence vacated; cause remanded for re-sentencing with directions. . Defendant is not, as he argues, entitled to all gain time earned up to the date of his release on probation. §
948.06(6), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7131, 1990 WL 134767
...h no more than four years imprisonment and two years in a community control program. Section
958.14 of the Youthful Offender Act provided that upon a violation of com *1371 munity control the youthful offender will be subject “to the provisions of section
948.06(1).” Section
948.06(1), Florida Statutes, was part of the original statute adopting the concept of probation in Florida and provides in effect that when a person is not sentenced but is placed on straight probation in lieu of sentence (this is not any typ...
...While Clem followed Ellis in holding that a youthful offender’s sentence was limited to four years after violation of probation, the Clem court certified two questions, the second asking whether, upon revocation of a youthful offender’s community control, can he be sentenced in accordance with section 948.06(1)....
...If, pre-amendment, the youthful offender statute limited punishment to four years, 11 the 1985 amendment authorizing six years confinement enhances prior authorized punishment and cannot be applied ex post facto to existing cases. 12 On the other hand, if pre-amendment, the reference in section
958.14 to section
948.06(1) authorized punishment up to the statutory maximum without limitation and that statutory maximum exceeds the six years confinement (as it does in this case), then the 1985 amendment restricting punishment to six years confinement con...
CopyPublished | Florida 3rd District Court of Appeal | 2009 WL 2762712
...Martinez, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee. Before GERSTEN, SHEPHERD, and CORTIÑAS, JJ. PER CURIAM. Affirmed. See § 948.06(5), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 5225351, 2013 Fla. App. LEXIS 14808
...ntence, contending that the trial court was without jurisdiction over her when it purported to revoke her probation. She argues that the November 2010 modification order was a nullity because the trial court did not follow the procedures required by section 948.06, Florida Statutes (2010), before it purported to modify her probation; that because the November 2010 modification order is a nullity, her probation ended by its own terms on January 23, 2011; and that because the affidavit of violatio...
...conditions of probation. See Williams v. State,
578 So.2d 846 (Fla. 4th DCA 1991) (finding that extension of probationary period at subsequent restitution hearing when sentence already imposed at earlier sentencing hearing violated double jeopardy). Section
948.06, Florida Statutes (1987), “provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.” Clark v. State,
579 So.2d 109, 110 (Fla.1991). Before probation may be enhanced, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge. Id. at 110-11 ; §
948.06(1), Fla....
...anced, either by extension of *1122 the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06....
...1st DCA 2006) (“Before probation may be enhanced, either by extension of the period or by addition of terms, a violation of probation must be formally charged and the probationer must be brought before the court and advised of the charge, following the procedures of section
948.06, Florida Statutes (1993).”); Frederick v. State,
405 So.2d 1344, 1345 (Fla. 3d DCA 1981) (holding that the trial court’s sua sponte order that purported to modify the defendant’s probation violated double jeopardy and was also an unauthorized extension under section
948.06)....
...” Clark,
579 So.2d at 111 . Here, the record plainly shows that the trial court enhanced Garcia-Medina’s probationary term from eighteen months to five years, but nothing in the record shows that the trial court complied with the requirements of section
948.06 in doing so. Section
948.06(l)(b) requires that the Department of Corrections file an affidavit of violation and serve the probationer with either a warrant or a notice to appear....
...Moreover, there is no record of any hearing of any kind taking place before the modification order was rendered. There is some indication in the record that the Department of Corrections may have submitted a “notification letter” of a “technical violation ... in lieu of a violation report” as permitted by section 948.06(l)(e). 2 While no such notification letter appears in the record, even if we assume that one was properly submitted to the court, section 948.06(2) still requires that the trial court hold a hearing before any violation may be found and before any modification to the terms of probation may be made. While a trial judge who receives a notification letter of a technical violation may have various options available for dealing with that notification letter, bypassing the notification and hearing requirements of section 948.06 is not one of those options if the court intends to modify any of the terms of probation. Hence, because the trial court did not comply with the requirements of section 948.06 before it purported to modify Garcia-Medina’s probation, the November 2010 modification order is a nullity....
...er. Cf. Clark,
579 So.2d at 111 (vacating an order revoking community control, the adjudication of guilt, and the resulting sentence and ordering that a prior modification order be vacated because the trial court had not followed the requirements of section
948.06 when modifying Clark’s probation and thus had no jurisdiction to subsequently revoke it); Dennis,
630 So.2d at 605 (vacating a revocation of probation that was based on an earlier modification order when the modification order was entered in violation of section
948.06)....
...Therefore, contrary to the State’s assertions, Gareia-Medina has not waived this argument or her entitlement to relief. Accordingly, we vacate the November 2010 order purporting to modify Garcia-Medina’s probation which was entered without jurisdiction and in violation of the requirements of section 948.06....
...obation, leads us to suspect that the modification order was actually prepared by the probation officer and submitted ex parte to the trial court. Such a procedure — if this is, in fact, what occurred — raises a wealth of due process concerns. . Section 948.06 was substantially revised in 2011. See Ch.2011-38, § 2, at 511-12, Laws of Fla. This provision now appears in section 948.06(l)(g), Florida Statutes (2012).
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 21112
given and the materiality of alleged violations. §
948.06(1), Fla.Stat. (1979); Watkins v. State, 368 So
CopyPublished | Florida 4th District Court of Appeal | 2010 WL 3564713
...ble jeopardy. Id. The Florida Supreme Court agreed that there had been such a constitutional violation, concluding the "added conditions... enhanced the terms of [the defendant's] original probationary sentence." Id. at 1063-64. The court pointed to section
948.06, Florida Statutes (1987), which "`provides the sole means by which the court may place additional terms on a previously entered order of probation or community control.'" Id. at 1064 (quoting Clark v. State,
579 So.2d 109, 110 (Fla. 1991)); see also Fla.R.Juv.P. 8.120(a) (tracking §
948.06)....
CopyPublished | Florida 1st District Court of Appeal
...nt
procedural relationship between rules 3.170 and 3.790. In fact,
both rule 3.790 and its authorizing statute make specific and
repeated references to admitting to an alleged violation, rather
than pleading to one. See Fla. R. Crim. P. 3.790(b)(1);
§ 948.06(2)(a), (c), (d), Fla....
CopyPublished | District Court of Appeal of Florida
1st DCA Aug. 25, 2020) (holding that whether section
948.06(2) applies to a defendant who committed an
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 4018419, 2017 Fla. App. LEXIS 13044
...Of course, under section
948.012(2)(a), the trial court still retains the discretion to impose sentence. But the
statutory authority makes clear that only upon imposition of sentence or upon the
revocation of the defendant’s probation does the trial court lose its discretion to
withhold adjudication of guilt. See §
948.06(2)(b) & (e), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 4821677, 2013 Fla. App. LEXIS 14457
...ondition and was added only after the defendant’s motion to correct disposition order. Probation cannot be enhanced without first a determination that the probationer violated probation. J.H. v. State,
71 So.3d 202, 204 (Fla. 5th DCA 2011) (citing §
948.06, Fla....
CopyPublished | District Court of Appeal of Florida
1st DCA Aug. 25, 2020) (holding that whether section
948.06(2) applies to a defendant who committed an
CopyPublished | Florida 5th District Court of Appeal
...possession of a controlled substance, Appellant claims that the
trial court erred in denying his motion to correct sentencing error
pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)
because the court was required to modify or continue Appellant’s
probation under section 948.06(2)(f), Florida Statutes (2023).
Contrary to the State’s assertion, this claim is properly preserved
for appeal because it was raised in Appellant’s rule 3.800(b)(2)
motion. Since the State does not dispute that Appellant met all
four conditions of section 948.06(2)(f), the trial court was required
to modify or continue Appellant’s probation....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14924, 2015 WL 5837692
...MAY, J.
The State appealed an order reinstating the defendant’s probation after
he admitted a violation of probation. It argued the trial court erred in
failing to hold a danger hearing and in failing to make the required written
findings under section 948.06(8), Florida Statutes (2013)....
CopyPublished | Supreme Court of Florida | 29 Fla. L. Weekly Supp. 568, 2004 Fla. LEXIS 1746, 2004 WL 2248209
...rers’ intervention program as a condition of probation or community control. The new form order of revocation of probation/community control, rule 3.995, is adopted in response to chapter 2001-109, section 1, at 911, Laws of Florida, which amended section 948.06, Florida Statutes, to allow a term of probation or community control to be “tolled” by the filing of an affidavit of violation and the issuance of an arrest warrant....
CopyPublished | Florida 3rd District Court of Appeal
...(2021) (providing that when probation is revoked, the sentencing court
shall order credit for time served in state prison or county jail, upon
recommitment to the Department of Corrections, and “shall direct the
Department of Corrections to compute and apply credit” for prior prison
credit); § 948.06(2)(b), Fla....
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 594, 2015 Fla. LEXIS 2949, 2015 WL 10490032
...ved on case/count . (Offenses
committed between October 1, 1989, and December 31, 1993.)
The Court deems the unforfeited gain time previously awarded on the above
case/count forfeited under section
948.06(7), Florida Statutes.
The Court allows unforfeited gain time previously awarded on the above case/count.
(Gain time may be subject to forfeiture by the Department of Corrections under
section
944.28(1), F...
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 16528, 2010 WL 4273196
...not be awarded for time spent while out on bond. This appeal could not have been filed in good faith because the law is well settled in this area. Time spent on community control is expressly prohibited from being credited towards a prison sentence. § 948.06(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 10970, 1993 WL 435888
...successfully completed prior to violation. Furthermore, it was lawful for the judge to reimpose jail time as a condition of community control, but on remand the sentence should be corrected to reflect credit for previous jail time actually served.. § 948.06(6), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 6477
...The appellant maintains that the strict requirements of guilty pleas in original criminal proceedings which were established in Boykin v. Alabama, 1969,
395 U.S. 238 ,
89 S.Ct. 1709 ,
23 L.Ed. 2d 274 , must be carried over to a proceeding involving the revocation of probation. We disagree. Section
948.06, Florida Statutes, F....
CopyPublished | District Court of Appeal of Florida
analogous to probation revocation procedures under section
948.06 of the Florida Statutes, we see no sound basis
CopyPublished | District Court, S.D. Florida | 1981 U.S. Dist. LEXIS 17074
...prison terms were imposed. The transcript of the plea hearing indicates that the trial court judge informed the Petitioner that he would be subject to additional prison time if he violated the terms of his probation. (R. 35). Furthermore, Fla.Stat. § 948.06 provides that following the revocation of probation the court may “impose any sentence which it might have originally imposed before placing the probationer on probation.” The Fifth Circuit has validated a similar sentence imposed by a...
CopyPublished | Florida 1st District Court of Appeal
... time he spent in the ART program. The trial court ruled that the appellant was
actually awarded more credit that he was entitled to receive, and that he was not
entitled to credit for the 52 days he spent in the ART program because that was a
condition of his probation. See § 948.06(3), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...We
have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(D), (F). We affirm the
revocation and sentence. We remand, however, so that the trial court may correct a
scrivener's error, and render the written VFOSC statutory findings necessary under
section 948.06(8)(e), Florida Statutes (2014).
Background
The State charged Mr....
...I do remember that, Judge, now. Okay."
Analysis
We confront, as our sister district described, "the statutory intricacies of
revocation of probation proceedings involving . . . a [VFOSC] under section
948.06."
Barber v. State,
207 So. 3d 379, 381 (Fla. 5th DCA 2016); see also Bailey v. State,
136
So. 3d 617, 620 (Fla. 2d DCA 2013) (decrying the trial court's use of a preprinted form
as insufficient to satisfy the "intricacies of section
948.06(8)")....
...5th DCA 2010) ("When a defendant disputes a prior
offense, the sentencing court must either require the State to produce corroborating
evidence of the offense or not consider the offense."). The trial court promptly, and
properly, disabused counsel of his concern. See § 948.06(8)(b)(2) (defining a VFOSC
as an individual on "community control ....
... designation and resentence him with a corrected scoresheet with fewer legal status
points.
"[T]he VFOSC statute, by its very terms, applies to a person who is on
probation." Hernandez v. State,
259 So. 3d 907, 910 (Fla. 2d DCA 2018). Specifically,
"[s]ection
948.06(8) imposes additional requirements on the trial court when a
probationer before it on revocation proceedings is a violent felony offender of special
concern." Bailey,
136 So. 3d at 618. Section
948.06(8)(e)(1) provides that, if the trial
court finds, following a revocation hearing, that the VFOSC has violated the terms of his
supervision, other than a failure to pay costs, fines, or restitution, then "the court shall
[m]ake writt...
...added.) Clearly, "th[e] statute
requires that, if an individual meets the requirements for that designation, the trial court
must make written findings as to whether the individual is a danger to the community."
Barber,
207 So. 3d at 381 (citing §
948.06(8)(e)(1), Fla. Stat. (2015)). The trial court did
not make the required written findings, taking into consideration any of the factors
enumerated in section
948.06(8)(e)(1)(a)–(e). §
948.06(8)(e)(1) ("In determining the
danger to the community posed by the offender's release, the court shall base its
findings on one or more of the following ....
...ke Mr.
McCray's VFOSC designation and remand for resentencing. "[B]ecause a defendant's
designation as a VFOSC does not depend on a finding that the defendant poses a
danger to the community, a trial court's failure to make written findings under section
948.06(8)(e) as to whether a defendant poses a danger to the community does not
entitle the defendant to have the VFOSC designation stricken." Whittaker v. State, 223
-5-
So. 3d 270, 274 (Fla. 4th DCA 2017). More specifically subsections (b) through (d) of
section 948.06(8) "deal[] with provisions that pertain to the requirements that must be
met to qualify a person as a [VFOSC]." Barber, 207 So....
...special concern found to pose a danger to the community." Id. Contrary to Mr.
McCray's position, "[t]he VFOSC designation is based on a defendant's criminal history,
and does not depend on whether the trial court has made the required written findings
pursuant to section 948.06(8)(e)." Whittaker, 223 So....
...If not, there is nothing in the statute to indicate that the
designation under the first part must be eliminated."). Rather, the trial court's
conclusion that a VFOSC poses a danger to the community compels revocation.
Whittaker, 223 So. 3d at 274 ("A trial court's finding under section 948.06(8)(e) as to
whether a defendant who qualifies as a VFOSC poses a danger to the community is
significant because it determines whether revocation of probation is mandatory or
discretionary.")....
...Bailey was a VFOSC who posed a danger to the community,
failed to make either oral or written findings as to Mr. Bailey's dangerousness.
It strikes us that the choice of remedy turns on whether the trial court
orally pronounced the specific facts under section 948.06(8)(e) upon which it relied to
revoke supervision. Clearly, the trial court expressed its frustration with Mr. McCray's
repeated violations and his unsuitability for continued supervision. This finding
seemingly fits the bill. See § 948.06(8)(e)(1)(c) ("The offender’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 . . . ."). Consequently, remand is appropriate so that the trial
court can make written findings conforming to its oral pronouncement.
We pause to note that, although a finding of one of the factors listed in
section 948.06(8)(e)(1) would ordinarily point to dangerousness, this is not so apparent
to us in Mr....
CopyPublished | Florida 4th District Court of Appeal
...Odom, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges the facial constitutionality of Section
948.06(8)(e)2., Florida Statutes (2016), as violative of Apprendi v....
...Shortly after sentencing, the State charged appellant with violating her
probation by changing her address without the consent of her probation
officer. She admitted her violation. Because she qualified as a “violent
felony offender of special concern,” section 948.06(8)(e)2., Florida Statutes
(2016), required the trial court to determine whether she “pos[ed] a danger
to the community” before determining her sentence....
...sentence of 62.7 months in prison, concurrent for both sentences. Later,
the court reduced the sentence to 56.85 months based upon a scoresheet
error. Appellant appeals the sentence.
Although she did not raise the issue in the trial court, on appeal
appellant argues that Section 948.06(8)(e)2....
...there is “no right to a jury trial before probation may be revoked.”); State
ex rel. Roberts v. Cochran,
140 So. 2d 597 (Fla. 1962) (finding trial by jury
is not required generally in a probation revocation proceeding). Therefore,
Apprendi does not apply.
A Section
948.06(8)(e)2....
...The
statutory requirement that the judge make this finding rather than a jury
does not render it unconstitutional.
The State concedes that the court only made oral findings that
appellant posed a danger to the community and that her probation should
be revoked. Section 948.06(8)(e)1., Florida Statutes (2016), requires
“written findings as to whether or not the violent felony offender of special
concern poses a danger to the community.” Because the record provides
the necessary information to enter such...
CopyPublished | Florida 3rd District Court of Appeal | 1991 Fla. App. LEXIS 10291, 1991 WL 206838
...3d DCA 1979), Hewett argues that the court should not have ordered the extension when no violation was specifically found. In Smith , the district court held that a period of probation can be extended only upon a showing of a willful violation of probation following proper notice and hearing. Section 948.06, Florida Statutes, was amended in 1984 by the addition of subsection (4)....
CopyPublished | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 2346, 1988 Fla. App. LEXIS 4591, 1988 WL 107028
...In accordance with our decision in Glos-son v. Solomon,
490 So.2d 94 (Fla. 3d DCA 1986), we hold that the trial judge’s announced policy of refusing to set bail in probation revocation proceedings, thereby refusing to exercise any discretion, violates section
948.06(1), Florida Statutes (1987)....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 15347, 2015 WL 6087195
...me effective.
When the sentencing court sentenced Miller a second time after revoking
his probation in March 2007, it was authorized by statute only to impose a sentence it
might have imposed when Miller was initially sentenced. See § 948.06(2)(b),(e), Fla.
Stat....
CopyPublished | Florida 1st District Court of Appeal
...Dempsey, Judge.
October 15, 2018
WINOKUR, J.
The State appeals the trial court’s dismissal of Appellee’s
probation violation affidavit, arguing that it properly tolled
Williams’ probationary period pursuant to the version of section
948.06, Florida Statutes in effect at the time of Williams’ original
probation violation....
...4th DCA 2016), a warrant cannot toll probation for
technical violations. At a hearing on this motion, the State
conceded that Mobley required that the affidavit be dismissed,
but urged the trial court to “recede” from Mobley because it
improperly interpreted section
901.02, Florida Statutes, as it is
cited in section
948.06(1), Florida Statutes....
...ons.
II.
On appeal, the State does not argue that Mobley applied but
constituted an improper interpretation of the law. Instead, the
State argues that Mobley did not apply because Mobley
interpreted a version of section 948.06(1) that did not yet exist
when Williams violated his probation, and that at the time
Williams violated his probation, tolling occurred upon issuance of
a warrant, regardless of whether the violation was technical or
substantive....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 10652, 1995 WL 597437
...on is revoked. State v. Green,
547 So.2d 925 (Fla.1989). See also Tripp v. State,
622 So.2d 941 (Fla.1993); Byers v. State,
652 So.2d 1221 (Fla. 2d DCA 1995); Branton v. State,
646 So.2d 791, 792 (Fla. 2d DCA 1994). The state agrees the amendment to section
948.06, Florida Statutes, which permits forfeiture of gain time when the probationary portion of a split sentence is revoked, does not apply to appellant’s offense which was committed before the effective date of the amended statute....
...earn an early release, together with 26 days served in jail. Accordingly, we affirm the order denying appellant’s motion to correct or clarify sentence. BOOTH, J., concurs. BENTON, J., dissents with opinion. . In 1989, subsection (6) was added to section 948.06, Florida Statutes, to provide in part: Notwithstanding any provision of law to the contrary, whenever probation or community control, including the probationary or community control portion of a split sentence, is violated and the prob...
CopyPublished | Florida 2nd District Court of Appeal | 1996 WL 582600
...By this contention, Bruggeman essentially requests that he be given credit against his prison term for the time he spent under probation supervision. The trial court correctly denied Bruggeman's motion because such credit is specifically prohibited by statute. Section 948.06(1), Florida Statutes (1991), provides that, upon revocation of probation, the trial court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless there has been a previous adjudication of guilt, and impose any sentence that it might have originally imposed before placing the probationer on probation. The maximum sentence that may be imposed for a second degree felony is fifteen years incarceration. Section 948.06(2) provides that no part of the time the defendant is on probation shall be considered as any part of the time that the probationer shall be sentenced to serve....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 7749, 1990 WL 149756
...Appellant was the sole witness at the revocation hearing at which his only defense was his inability to pay. 1 Needless to say, therefore, that while appellant admitted his failure to pay [thus obviating the burden on the state to establish it pursuant to section 948.06(4), Florida Statutes (1989) ], all the evidence was in support of that defense....
...First, there was no evidence to support the essential finding of an ability to pay. Murphy v. State,
442 So.2d 1047 (Fla. 4th DCA 1983). Moreover, while it is true that a probationer must affirmatively show in ability by clear and convincing evidence, section
948.06(4), appellant’s uncontrovert-ed testimony in this regard cannot arbitrarily totally be rejected; Cf....
CopyPublished | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2079, 1986 Fla. App. LEXIS 9909
originally found guilty and placed on probation. § 948.-06(1), Fla.Stat. (1984) (“If probation ... is revoked
CopyPublished | District Court of Appeal of Florida
applies to a person who is on probation. See §
948.06(8), Fla. Stat. (2012). We reject
CopyPublished | Florida 1st District Court of Appeal
...Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Jessica DaSilva, Tallahassee, for Appellee.
MARSTILLER, J.
Appellant Brian Williamson was found in violation of probation, and the trial
court, pursuant to section 948.06(8), Florida Statutes, designated him a violent
felony offender of special concern who poses a danger to the community.
Williamson challenges the designation and resulting sentence, arguing that the court
incorrectly relied on a qualifying offense—aggravated assault—he committed
before section 948.06 was enacted in 2007. Because the plain language of the
pertinent statutory provision contains no such limitation, we affirm. 1
Under section 948.06(8)(b), Florida Statutes (2014), a violent felony offender
of special concern is someone on:
1....
...775.21 and has committed a qualifying offense on
or after the effective date of this act.
(Emphasis added.) 2
Williamson’s designation falls under paragraph (8)(b)2., above, and the
qualifying offense he was convicted of in 2004 is aggravated assault. See
§948.06(8)(c)14., Fla....
...d committed in
2005, and did not have a new felony conviction at the time he was being sentenced
for violating probation.
24 So. 3d at 659, 663. Thus, he was not on felony probation
for any offense committed on or after the 2007 effective date of section
948.06(8),
and he had not committed a qualifying offense on or after that date....
...Consequently,
the Second District held that “under the plain language of the statute, [the 2005
2
Once it is determined the offender qualifies for the designation, the court then must
determine if the offender poses a danger to the community. § 948.06(8)(e), Fla....
...2011) (“When a statute is clear, we
do not look behind the statute’s plain language for legislative intent or resort to rules
of statutory construction to ascertain intent.”). The trial court correctly designated
Williamson a violent felony offender of special concern under section 948.06(8)
based on his prior conviction for aggravated assault.
AFFIRMED.
BENTON and ROWE, JJ., CONCUR.
4
CopyPublished | Florida 3rd District Court of Appeal | 2008 WL 4791009
...On the tape, Desusa further implicated Thompson as the person who fired several shots at the officer. The trial court revoked Thompson's probation and sentenced him to thirty-one years in prison, a sentence he could have received for the 1994 crimes. See § 948.06(2)(b), Fla....
...This neutral fact-finder need only find the evidence at a probation revocation hearing is "sufficient to satisfy the conscience of the court that a condition of probation has been violated." Peters,
984 So.2d at 1234. The court must give the probationer "an opportunity to be fully heard." §
948.06(2)(d), Fla....
CopyPublished | Florida 1st District Court of Appeal
...erence to [her] obligations” is sufficient to support revocation of probation. Grimsley v. State,
408 So.2d 1075, 1075 (Fla. 2d DCA 1982). The trial court was within its discretion to impose an eleven-month, thirty-day sentence on these facts. See §
948.06(2)(e), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1981 Fla. App. LEXIS 21523
...by postponing its effective date (a) unlawfully subjected the defendant to increased punishment for the same offense, Troupe v. Rowe,
283 So.2d 857 (Fla.1973), and (b) alternatively, was an unauthorized extension of the defendant’s probation, see Section
948.06, Florida Statutes (1979); Smith v....
CopyPublished | Florida 4th District Court of Appeal
...that can toll probation when a probationer violates the terms of his
supervision, which could have allowed his probation to extend beyond its
original two-year span and last until 2011, provisions are inapplicable to
the 1999 grand theft case. Specifically, Appellant points out that section
948.06(1)(f), Florida Statutes, which provides for tolling of probation where
a violation of probation is filed, was not made effective until July 1, 2001,
which is four months after Appellant’s probation had already expired in
March 2001. 2001 Fla. Sess. Law Serv. Ch. 2001-109 (C.S.S.B. 888)
(WEST). The State agrees that the tolling provisions of section
948.06(1)
are inapplicable to the 1999 grand theft case. Zaborowski v. State,
126
So. 3d 405, 408 (Fla. 2d DCA 2013) (holding that the tolling provisions of
section
948.06(1), which did not exist at the time of the probationer’s
violations, could not be retroactively applied where the probationary period
had expired before the statute was enacted)....
CopyPublished | Florida 4th District Court of Appeal
...Appellant Walter Hart appeals the revocation of his probation and
subsequent sentences in two cases, arguing that the trial court erred in
failing to make written findings that he posed a danger to the community
as a violent felony offender of special concern (“VFOSC”) under section
948.06(8)(e), Florida Statutes (2022)....
...Appellant filed a Florida Rule of
Criminal Procedure 3.800(b)(2) motion to correct sentencing error,
asserting in part that he was entitled to a new sentencing hearing because
the scoresheet included twelve VFOSC points, but that the trial court had
made no oral or written findings that he was a danger to the community
under section 948.06(8)(e).
During the hearing on Appellant’s motion, the trial court stated that it
was not going to discuss the “failure to address [the VFOSC finding] in
writing,” noting that “this transcript [of the sentencing after the pro...
...SC designation
was on the scoresheet, to which Appellant had agreed. The State agreed
that the trial court had been clear in the transcript as to why Appellant is
a danger to the community, but requested that the trial court issue a
written order as section 948.06(8)(e) requires....
...the trial court did not timely enter the required written order. See Arnone
v. State,
204 So. 3d 556, 557 (Fla. 4th DCA 2016). In Arnone, we held:
[W]here a court orally pronounces a reason, consistent with
one or more of the factors listed under section
948.06(8)(e)(1),
for its finding that the defendant, as a violent felony offender
of special concern, poses a danger to the community, but fails
to provide written reasons for its finding, the proper remedy is
to affir...
...and that his concession was consistent with the parties’ agreement to the
scoresheet. The trial court denied Appellant’s rule 3.800(b)(2) motion and
made written findings consistent with its oral pronouncements at the end
of the probation hearing regarding each factor set forth in section
948.06(8)(e)1., Florida Statutes (2022), to determine that Appellant’s
release posed a danger to the community....
...VFOSC, poses a danger
to the community. However, Appellant is not entitled to resentencing.
Resentencing is not required where the trial court orally pronounces a
reason that is consistent with one or more of the factors which it must
consider under section 948.06(8)(e)1....
CopyPublished | Florida 2nd District Court of Appeal
...Appellee.
No. 2D2024-1934
November 27, 2024
Appeal from the Circuit Court for Pinellas County; Philip J. Federico,
Judge.
Anthony Leon Kelly, pro se.
PER CURIAM.
Affirmed. See § 948.06(3), Fla....
CopyPublished | Florida 1st District Court of Appeal
...Johnson, Judge.
November 27, 2024
PER CURIAM.
AFFIRMED. See Holton v. State,
318 So. 3d 654, 657–58 (Fla.
1st DCA 2021) (acknowledging that the trial court failed to make
written findings on whether the appellant posed a danger to the
community, as required by section
948.06(8)(e), Florida Statutes,
but rejecting the claim because of the appellant’s failure to
preserve it by filing a motion pursuant to Florida Rule of Criminal
Procedure 3.800(b)).
OSTERHAUS, C.J., and LEWIS and WINOKUR, JJ., concur.
...
CopyPublished | Florida 2nd District Court of Appeal | 1993 Fla. App. LEXIS 11755, 1993 WL 482480
...State,
622 So.2d 941 (Fla.1993). We further note that she is entitled to receive not only credit for time served but also any earned gain time accrued under the three and a half year sentence pursuant to State v. Green,
547 So.2d 925 (Fla.1989). We are aware that section
948.06(6), Florida Statutes (Supp.1990) was enacted to counter Green, but her offense was committed before the effective date of the statute....
CopyPublished | Florida 4th District Court of Appeal
...On May 6, 2022, upon revoking the defendant’s probation, the circuit
court entered a separate judgment, which again adjudicated the defendant
guilty of two counts of aggravated battery with a deadly weapon.
The circuit court erred in entering the duplicative judgment. See §
948.06(2)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 17193, 2005 WL 2863017
...he spent on community control (300 days). The record confirms that the Department of Corrections has already awarded Rivera 363 days credit for jail time served. 1 She is also entitled to no credit for the days served while on community control. See §
948.06(3), Fla. Stat. (2004); State v. Cregan,
908 So.2d 387, 391 (Fla.2005)(citing section
948.06(3) to support its holding “that a defendant who violates the conditions of community control cannot be given credit against a subsequent term of incarceration for the time spent in community control”); Griffin v....
CopyPublished | Supreme Court of Florida | 2000 Fla. LEXIS 2556, 2000 WL 1637548
...The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served on case/count_(Offenses committed between October 1, 1989, and December 31,1993) _The Court deems the unforfeited gain time previously awarded on the above case/count forfeited under section 948.06(6)....
CopyPublished | District Court of Appeal of Florida
basis for the probation revocation. • Section
948.06, Florida Statutes In his second issue,
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 15145, 1999 WL 1036519
...as Article X, Section 9, of the Florida Constitution. His argument is that although the 1989 amendment allowed the forfeiture of gain-time as of October 1, 1989, the days set aside for “control release” could not be forfeited until newly enacted Section 948.06(6), Florida Statutes, became effective on September 1, 1990....
...Application of the Department of Corrections policy to Widmer’s racketeering offenses means the commencement date for a determination of credit in regard to the racketeering charges is April 17, 1987, well before the effective date of the subsequently adopted forfeiture provisions set forth in sections
944.28(1) and
948.06(6)....
...However, as to the sentence imposed upon the arson offense, we reach a different result. The arson was committed October 20 or 21, 1989. Section
944.28(1), permitting forfeiture upon revocation of probation, was effective October 1, 1989. Widmer has taken the position that the section
948.06(6) control release forfeiture provisions are applicable in the case, rather than section
944.28(1)....
...Since the effective date of the control release provision *411 was September 1, 1990, Widmer urges there can be no forfeiture with regard to the arson offense. However, in State v. Lancaster, our supreme court stated a belief that both provisions, i.e., sections
944.28(1) and
948.06(6), provide the state with authority to declare a forfeiture of all gain-time, including provisional credits, administrative, and incentive gain-time, but that authority can only be invoked for prisoners whose underlying offenses were committed on or after October 1, 1989....
CopyPublished | Florida 5th District Court of Appeal
...P.
9.030(b)(1)(A). We affirm the trial court’s judgment and sentence
but remand for entry of a written order setting forth its findings
regarding whether King, as a violent felony offender of special
concern, poses a danger to the community, as required by section
948.06(8)(e), Florida Statutes (2023).
I.
In November 2021, King pleaded guilty to a third-degree
felony robbery by sudden snatching and was sentenced to three
years in the Florida state prison system followed by two years of
probation....
...This appeal followed.
II.
King argues that the trial court erred in two ways: (i) by
failing to enter a written order as to whether King, as a violent
felony offender of special concern, poses a danger to the
community, as required by section 948.06(8)(e), Florida Statutes;
2
and (ii) by imposing the $100 cost of prosecution in the absence of
a request from the State Attorney’s office....
...The weight of the evidence against the
offender.
* We affirm the trial court’s imposition of $100 cost of
prosecution. See O’Malley v. State,
378 So. 3d 672, 673–74 (Fla. 5th
DCA 2024).
3
e. Any other facts the court considers relevant.
§
948.06(8)(e)1.a.–e., Fla....
...State,
282 So. 3d 158, 162 (Fla. 2d DCA
2019).
III.
Accordingly, we AFFIRM the revocation of King’s probation
and the sentence imposed upon him as a violent felony offender of
special concern.
However, because section
948.06(8)(e) requires the trial court
to enter a written order setting forth its findings regarding
whether King, as a violent felony offender of special concern, poses
a danger to the community, we REMAND for the trial court to enter
such a...
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 15040, 1999 WL 1024028
...Applying the clear language of the statute, we conclude that once a county court has ordered that a defendant will not be incarcerated and denied that defendant a jury trial based on that commitment, it may not later impose incarceration for a violation of probation. Additionally, section 948.06(1), Florida Statutes (1997), provides that upon a revocation of probation, the trial court may “impose any sentence which it might have originally imposed before placing the probationer or offender on probation.” Because the “ord...
CopyPublished | Florida 4th District Court of Appeal
...….
The state argues the circuit court properly committed the juvenile to a
high-risk secure residential program because the juvenile committed new
law violations by testing positive for marijuana and violating his curfew.
The state’s argument lacks merit. Section 948.06(2)(f)1.c., Florida
Statutes (2020), provides in pertinent part:
Except as provided in subparagraph 3....
...or upon waiver by the
probationer, the court shall modify or continue a probationary
term upon finding a probationer in violation when any of the
following applies:
….
c. The violation is a low-risk technical violation, as defined
in paragraph (9)(b).
§ 948.06(2)(f)1.c., Fla. Stat. (2020).
Subsection 9(b) defines a “low-risk violation” as including “[a] positive
drug or alcohol test result” and “[a] violation of curfew.” § 948.06(9)(b)1.
& 6., Fla....
CopyPublished | Florida 5th District Court of Appeal | 1994 Fla. App. LEXIS 4323
...Kendrick,
596 So.2d 1153, 1154 (Fla. 5th DCA 1992) [, rev. dismissed,
613 So.2d 5 (Fla.1992)]. See also §§
948.01(1), (3), and (4), Fla.Stat. (1991). In the other situation the defendant, following revocation, is finally sentenced to incarceration, and section
948.06(1) then permits the court to impose "any sentence which it might have originally imposed.” Ogden,
605 So.2d at 158 .
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6341
MANN, Judge. Ruiter’s petition for writ of habeas corpus alleges wrongful denial of counsel at parole revocation hearing. See Fla.Stat. §§
947.21-23 (1969) F.S.A. Cf. §
948.06....
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 7619, 2002 WL 1071921
...Mosley could not have been readjudieated guilty of these crimes upon violating probation on March 21,1997 because he had already been adjudicated guilty in 1989. It is a basic principle that he could not be found guilty twice of the same crime. Additionally, section 948.06(1), Florida Statutes, and Florida Rule of Criminal Procedure 3.790(b) specifically describe the action to be taken by a court upon revoking probation....
CopyPublished | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 1342, 1985 Fla. App. LEXIS 14308
PER CURIAM. The sentencing court which releases a defendant on community control has jurisdiction to revoke that release, not the Parole and Probation Commission. See § 948.06(1), Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal
...s of the law in denying his motions without an evidentiary hearing. Section
948.03(2), Florida Statutes (2018), provides that a trial court may rescind or modify the terms and conditions of probation at any time during the probationary period. While section
948.06, Florida Statutes (2018), requires notice and a hearing before a court may modify a probationary sentence with enhanced or additional terms, nothing in chapter 948 requires a court to hold an evidentiary hearing upon receipt of a motion seeking modification of previously imposed conditions....
..., Clark v. State ,
579 So.2d 109 , 110-11, 110 n.3 (Fla. 1991) (holding that trial court erred in enhancing terms *795 of probation without first conducting hearing, even though defendant agreed to modification, but distinguishing modification under section
948.06 from section
948.03 ); see also Gerber v....
...Those circumstances are distinguishable from the facts presented here. In this case, Petitioner's motions did not seek enhanced probationary terms; rather, the motions sought rescission and modification of his existing probationary conditions. Thus, the notice and hearing requirements of section 948.06 are not applicable....
CopyPublished | Florida 5th District Court of Appeal
...s of the law in denying his motions without an evidentiary hearing. Section
948.03(2), Florida Statutes (2018), provides that a trial court may rescind or modify the terms and conditions of probation at any time during the probationary period. While section
948.06, Florida Statutes (2018), requires notice and a hearing before a court may modify a probationary sentence with enhanced or additional terms, nothing in chapter 948 requires a court to hold an evidentiary hearing upon receipt of a motion seeking modification of previously imposed conditions....
..., Clark v. State ,
579 So.2d 109 , 110-11, 110 n.3 (Fla. 1991) (holding that trial court erred in enhancing terms *795 of probation without first conducting hearing, even though defendant agreed to modification, but distinguishing modification under section
948.06 from section
948.03 ); see also Gerber v....
...Those circumstances are distinguishable from the facts presented here. In this case, Petitioner's motions did not seek enhanced probationary terms; rather, the motions sought rescission and modification of his existing probationary conditions. Thus, the notice and hearing requirements of section 948.06 are not applicable....
CopyPublished | Florida 5th District Court of Appeal | 2004 WL 1175280
...robation triggers resentencing, the defendant is not being sentenced for precisely the same conduct and double jeopardy concerns are not implicated. The trial court's authority to impose a stiffer sentence after a violation of probation derives from section 948.06(1), Florida Statutes, which provides in relevant part: If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previou...
...The court concluded: *608 There is no doubt that in the instant case, the trial court could have assessed victim injury points at the original sentencing hearing had the state presented evidence to support victim injury points. Therefore, we see no reason why the plain reading of section 948.06(1) does not permit the same victim injury points to be assessed upon a violation of probation....
...4th DCA 1996) (where original scoresheet showed no additional points for legal restraint, it was error to add such points after violation of probation). Judge Klein, in a special concurrence in Aponte, felt compelled to agree with the result based on existing case law, but believed section 948.06(1) prohibits adding points after probation is revoked and that Roberts carved out a sole exception, that for mistaken omissions....
CopyPublished | Florida 2nd District Court of Appeal | 1994 Fla. App. LEXIS 5088, 1994 WL 220677
...In this appeal, the state agrees with appellant’s counsel that appellant was charged by affidavit and warrant only with violation of probation for the first and third of the three counts, and that consequently revocation and resentencing on the second count was improper. § 948.06(1), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 11 Fla. L. Weekly 1200, 1986 Fla. App. LEXIS 8033
alternative methods of punishment were available. §
948.06(4), Fla.Stat. (1985); Bearden v. Georgia, 461
CopyPublished | Florida 4th District Court of Appeal
...(2020) (emphasis added).
Pursuant to section
948.03(1), reporting to the probation officer as
directed, permitting the probation officer to visit the probationer at his or
her home or elsewhere, and remaining within a specified place are
standard probation conditions. Id. Significantly, section
948.06, Florida
Statutes (2020), which governs probation violations, provides that
“[f]ailure to report a change in address or other required information,”
“[l]eaving the county without permission,” and “[f]ailure to report a change
in employment” are “low-risk violation[s].” §
948.06(9)(b)3., 8., 9., Fla.
4
Stat. (2020). Reading section
948.03 in para materia with section
948.06,
we hold that the condition requiring Appellant to obtain her probation
officer’s consent before leaving a specified place – her county of residence
and the jurisdiction of the court – and before changing her address or place
of employment, is consistent with standard conditions of probation....
CopyPublished | Florida 4th District Court of Appeal
...RREST OR
NOTICE TO APPEAR, CAN A WARRANT THAT DOES NOT ALLEGE A
PROBATIONER COMMITTED A NEW CRIME BE CONSIDERED A
WARRANT ISSUED UNDER SECTION
901.02 OF THE FLORIDA
STATUTES FOR THE PURPOSE OF TOLLING A PROBATIONARY
PERIOD PURSUANT TO SECTION
948.06(1)(f)?
STEVENSON, GROSS and FORST, JJ., concur.
* * *
CopyPublished | Florida 4th District Court of Appeal | 2016 WL 3011684, 2016 Fla. App. LEXIS 7968
...O WARRANTLESS ARREST OR NOTICE TO APPEAR, CAN A WARRANT THAT DOES NOT ALLEGE A PROBATIONER COMMITTED A NEW CRIME BE CONSIDERED A WARRANT ISSUED UNDER SECTION
901.02 OF THE FLORIDA STATUTES FOR THE PURPOSE OF TOLLING A PROBATIONARY PERIOD PURSUANT TO SECTION
948.06(1)(f)? STEVENSON, GROSS and FORST, JJ., concur.
CopyPublished | Florida 5th District Court of Appeal | 2010 WL 2160297
...Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. AFFIRMED. See § 948.06(8), Fla....
CopyPublished | Florida 4th District Court of Appeal
...probation. He asserts that the lack of such an evidentiary hearing in this
case requires reversal. We disagree, and affirm.
At appellant’s probation revocation hearing, the trial court found him
to be a violent offender of special concern pursuant to section 948.06(8)(b),
Florida Statutes (2016)....
...both the state and the offender are represented] determines that a violent
felony offender of special concern has committed a violation of probation
or community control[,]” then the judge must make written findings as to
whether that individual poses a danger to the community. § 948.06(8)(e).
Here, the court made an oral pronouncement finding appellant to be a
danger to the community due to “clocking somebody in the mouth” while
on probation, which was consistent with one or more factors listed under
section 948.06(8)(e)(1). See §§ 948.06(8)(e)(1)(a) (“The nature and
circumstances of the violation and any new offenses charged.”);
.06(8)(e)(1)(b) (“The offender’s present conduct, including criminal
convictions.”). These findings were appropriately reduced to writing
pursuant to section 948.06(8)(e)(1)....
CopyAgo (Fla. Att'y Gen. 1996).
Published | Florida Attorney General Reports
State,
651 So.2d 223 (Fla. 4th DCA 1995). 6 Section
948.06(1), Fla. Stat. (1995). 7 See, s. 948.034(1)(a)
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 7308
PER CURIAM. Affirmed. See Section 948.06, Florida Statutes, F.S.A....
CopyPublished | Florida 4th District Court of Appeal | 10 Fla. L. Weekly 1276, 1985 Fla. App. LEXIS 14042
...IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE POSITIVE, MAY THE CIRCUIT COURT, UPON REVOCATION OF A YOUTHFUL OFFENDER’S COMMUNITY CONTROL PROGRAM STATUS, TREAT THE DEFENDANT AS THOUGH IT HAD NEVER PLACED HIM IN COMMUNITY CONTROL AND SENTENCE HIM IN ACCORDANCE WITH SECTION 948.06(1), FLORIDA STATUTES? We again certify those questions to the Supreme Court of Florida as questions of great public importance....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 6438, 1999 WL 312284
...is revoked, the court shall adjudge the probationer ... guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer ... on probation.... ” § 948.06(1), Fla....
CopyPublished | District Court, M.D. Florida | 2008 U.S. Dist. LEXIS 39210, 2008 WL 2073910
...t revocation). Moreover, Florida Statute section
947.141 provides that conditional release supervision may be revoked where the offender violates the "terms and conditions of the release in a material respect." (emphasis added). See also, Fla. Stat. §
948.06(1)(a) (requiring revocation of probation be supported by violation of condition "in a material respect")....
CopyPublished | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 1219, 1987 Fla. App. LEXIS 8214
...t the same time), the earlier offense shall be scored as “prior record” and not as “additional offense.” Although the committee note refers only to probation, because revocation of probation and community control are treated identically, see § 948.06, Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 3228, 1990 WL 60900
...cocaine with intent to sell or deliver. The court ordered this sentence to be served consecutively to the sentence imposed in case number 86-12147. A person’s probation cannot be revoked for conduct not charged by affida *1388 vit and warrant. See § 948.06(1), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal
....
shall be rendered in open court and in writing, signed by the judge, filed, and
recorded."), and upon revocation of community control if no written judgment had been
entered earlier, Jackson v. State,
56 So. 3d 65, 67 (Fla. 2d DCA 2011) (Altenbernd, J.,
concurring) (citing §
948.06(2)(e), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2017 WL 1927736, 2017 Fla. App. LEXIS 6562
...We affirm appellant’s sentence entered after an open plea to the court on charges of violation of community control, without prejudice to seek postconviction relief. We note that it was-not necessary for the court to conduct a “danger hearing” pursuant to section 948.06(8)(d), Florida Statutes (2016) because appellant did not meet any of the statutory criteria that trigger the necessity for such a hearing....
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 4780, 1998 WL 210792
...The record in this case reflects that there was no admission or hearing on the affidavit for violation of probation. Further, the new crime which served as the basis for the affidavit of violation of probation was not one of the crimes involved in Case No. 96-03715. Therefore, the order of revocation must be reversed. See § 948.06, Fla....
CopyPublished | Florida 4th District Court of Appeal | 10 Fla. L. Weekly 1092, 1985 Fla. App. LEXIS 13753
...IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE POSITIVE, MAY THE CIRCUIT COURT, UPON REVOCATION OF A YOUTHFUL OFFENDER’S COMMUNITY CONTROL PROGRAM STATUS, TREAT THE DEFENDANT AS THOUGH IT HAD NEVER PLACED HIM IN COMMUNITY CONTROL AND SENTENCE HIM IN ACCORDANCE WITH SECTION 948.06(1), FLORIDA STATUTES? We again certify those questions to the Supreme Court of Florida as questions of great public importance....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 2296, 1995 WL 93827
...This distinction is borne out by the statutory safeguards that are triggered when the state establishes that a probationer who has been ordered to pay restitution has failed to do so. In that instance, the probationer is given a chance to respond prior to imposition of further sanctions. See § 948.06, Fla.Stat....
CopyPublished | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 160, 2012 WL 739122, 2012 Fla. LEXIS 486
...Const.; Fla. R. Jud. Admin. 2.140(e). The Committee proposes two amendments to rule 3.130, First Appearance — to subdivision (b), Advice to Defendant, and to subdivision (d), Pretrial Release. The proposals are in response to recent amendments to section 948.06(l)(d), Florida Statutes (2010), see ch.2011-38, § 2, Laws of Fla., which went into effect on October 1, 2011. See ch.2011-38, § 3, Laws of Fla. After considering the Committee’s proposals and reviewing the relevant legislation, we adopt the amendments as proposed by the Committee. Under section 948.06(l)(d)l.a., as amended, a defendant who is arrested for violating his or her probation or community control in a material respect by committing a new violation of law shall be informed at a first appearance hearing of the violation. Rule 3.130(b) (Advice to Defendant) is amended to reflect this requirement. In addition, sections 948.06(l)(d)2....
CopyPublished | Florida 4th District Court of Appeal
...tion
to correct sentencing error is de novo.” Pitts v. State,
202 So. 3d 882, 884
(Fla. 4th DCA 2016).
First, the trial court erred by failing to make written findings as to
whether or not Lillard poses a danger to the community as required by
section
948.06(8)(e), Florida Statutes (2008). Lillard concedes that he
qualifies as a violent felony offender of special concern (VFOSC) pursuant
to section
948.06(8)(b)3., Florida Statutes (2008). Below, the state filed a
notice stating that Lillard qualified as a VFOSC, and Lillard’s Criminal
Punishment Code Scoresheet assessed points for his status as a VFOSC.
Per section
948.06(8)(e), if a trial court determines that a VFOSC has
committed a violation of probation other than a failure to pay fines, costs,
or restitution, the trial court “shall . . . [m]ake written findings as to
whether or not the violent felony offender of special concern poses a danger
to the community.” §
948.06(8)(e)1., Fla. Stat. (2008). “[T]he written
findings requirement of section
948.06(8)(e) is mandatory, not
discretionary.” Reed v....
CopyPublished | Florida 4th District Court of Appeal
...sentence and raises several of the same issues as raised in case 4D2022-
0242.
We affirm Defendant’s convictions and sentences in both cases, but
remand solely for the trial court (1) in case 4D2022-0241, to make the
required written findings under section 948.06(8)(e), Florida Statutes
(2018), that Defendant, as a violent felony offender of special concern,
poses a danger to the community; and (2) to enter a properly calculated
scoresheet in cases 4D2022-0241 and 4D2022-0242 by removing the
twelve points imposed for a non-law violation of probation....
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 2585, 2003 WL 728777
...tatutory maximum for an offense. *827 State v. Summers,
642 So.2d 742 (Fla.1994) (holding that State v. Holmes,
360 So.2d 380 (Fla.1978), is distinguishable). Under these circumstances, the probationary period is not a sentence within the meaning of section
948.06. 1 Summers,
642 So.2d at 744 . Accordingly, section
948.06 does not apply. Summers,
642 So.2d at 744 (finding that section
948.06 “speaks only to the situation where a ‘sentence’ is imposed upon revocation of probation or community control.”)....
...See Young v. State,
739 So.2d 1179, 1180 (Fla. 4th DCA 1999) (holding that failure to file reports is mere violation of probation, not equivalent to absconding, and thus does not toll the period of probation). REVERSED. GUNTHER and HAZOURI, JJ., concur. . §
948.06, Fla....
CopyPublished | Florida 5th District Court of Appeal
...FENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS
958.14 [ 1 ] AND
948.06(2), [ 2 ] FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE *560 A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE?
248 So.3d at 1099 . Answering this question in the affirmative, the court held that section
948.06(2)(b)"clearly provides for the imposition of 'any sentence' that was 'originally' available to the sentencing judge." Id....
...AFFIRMED and REMANDED with instructions. ORFINGER, COHEN, and GROSSHANS, JJ., concur. §
958.14, Fla. Stat. ("A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06....
...for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated."). § 948.06(2)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal
...FENDANT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS
958.14 [ 1 ] AND
948.06(2), [ 2 ] FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE *560 A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE?
248 So.3d at 1099 . Answering this question in the affirmative, the court held that section
948.06(2)(b)"clearly provides for the imposition of 'any sentence' that was 'originally' available to the sentencing judge." Id....
...AFFIRMED and REMANDED with instructions. ORFINGER, COHEN, and GROSSHANS, JJ., concur. §
958.14, Fla. Stat. ("A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06....
...for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated."). § 948.06(2)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 4225, 2006 WL 733974
...The procedural focal point relevant to the issues on appeal in both cases occurred on April 22, 2003, when Billias was sentenced on a violation of probation to concurrent terms of three years in state prison, followed by a new term of two years of probation. These sentences were clearly erroneous. Under section 948.06(3), Florida Statutes (2003): When the court imposes a subsequent term of supervision following a revocation of probation or community control, it shall not provide credit for >-time served while on probation or community control toward any subsequent term of probation or community control....
CopyPublished | Florida 5th District Court of Appeal
...ause his probationary period had been tolled between December 2013, when the State filed an earlier violation of probation affidavit and an arrest warrant was issued, and March 2014, when that affidavit was dismissed. The court relied on language in section 948.06(1)(f), Florida Statutes, stating that a probationary *1265 period is tolled upon filing of a violation of probation affidavit and issuance of a warrant until the court rules on the violation....
...risdiction to entertain a violation of probation based on offenses occurring during the probation. Stambaugh v. State ,
891 So.2d 1136 , 1139 (Fla. 4th DCA 2005). We agree with Keene that the lower court erred in relying on the tolling provisions of section
948.06(1)(f) to conclude that his probationary period had not yet expired at the time of his July 2015 arrest. As Keene pointed out below, while the filing of a violation of probation affidavit ordinarily tolls the probationary period, the dismissal of that affidavit nullifies the tolling mechanism. See §
948.06(2)(g), Fla....
CopyPublished | Florida 5th District Court of Appeal
...ause his probationary period had been tolled between December 2013, when the State filed an earlier violation of probation affidavit and an arrest warrant was issued, and March 2014, when that affidavit was dismissed. The court relied on language in section 948.06(1)(f), Florida Statutes, stating that a probationary *1265 period is tolled upon filing of a violation of probation affidavit and issuance of a warrant until the court rules on the violation....
...risdiction to entertain a violation of probation based on offenses occurring during the probation. Stambaugh v. State ,
891 So.2d 1136 , 1139 (Fla. 4th DCA 2005). We agree with Keene that the lower court erred in relying on the tolling provisions of section
948.06(1)(f) to conclude that his probationary period had not yet expired at the time of his July 2015 arrest. As Keene pointed out below, while the filing of a violation of probation affidavit ordinarily tolls the probationary period, the dismissal of that affidavit nullifies the tolling mechanism. See §
948.06(2)(g), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 3492, 2001 WL 273864
...Payne,
404 So.2d 1055, 1057-58 (Fla.1981) (holding that a defendant placed on probation pursuant to the terms of a plea agreement may be sentenced to a term in excess of the provisions of the original plea bargain upon violation and revocation of said probation); *301 and section
948.06(1), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 1994 Fla. App. LEXIS 1655, 1994 WL 59356
...edit to time actually served and forfeiting the gain time he earned on the incarcerative portion of his split sentence. Moultrie v. State,
618 So.2d 789 (Fla. 1st DCA 1993) (citing State v. Green,
547 So.2d 925 (Fla.1989)). Prior to the enactment of section
948.06(6), Florida Statutes (1989), when a split sentence was imposed and the probationary portion of that split sentence was revoked, credit was given for both time actually served in prison and gain time earned under section
944.275, Florida Statutes (1987). 1 State v. Green,
547 So.2d 925 . Section
948.06(6) however effectively overruled State v....
..."Credit for time served” did not include "provisional credits” or "administrative gain time” credits under section 944.277, Florida Statutes (1988); these credits are used to alleviate prison overcrowding. Tripp v. State,
622 So.2d 941 , 942-43 n. 2 (Fla.1993). . Section
948.06(6), Florida Statutes (1989), provides in relevant part: Notwithstanding any provision of law to the contrary, whenever probation or community control, including the probationary or community control portion of a split sentence, is viol...
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 12269
objection to this order must be addressed. Section
948.06, Florida Statutes (1983), provides that, on
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 874547, 2012 Fla. App. LEXIS 4209
...wenty years of probation with the same conditions as previously imposed. As recently as last year, the Florida Supreme Court addressed the problem of violation of probation for failure to pay restitution. Del Valle v. State,
80 So.3d 999 (Fla.2011). Section
948.06, Florida Statutes (2009), places the burden on the non-paying probationer to prove inability to pay by clear and convincing evidence....
...) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer’s ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011), which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional....
...Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State’s evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of sec *969 tion 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 3481, 2011 WL 890851
...1396 ,
18 L.Ed.2d 493 (1967), and by separate order we grant that motion. Green has filed his own pro se brief, in which he raises the following grounds for reversal of the trial court’s order and sentence: (1) The affidavit and felony warrant issued in 1993 in accordance with the 1992-1994 version of section
948.06, Florida Statutes, was insufficient to toll probation; (2) The felony warrant statute of limitations applies to a violation of probation arrest warrant; (3) Green is entitled to incarceration credit from September 1, 1994, to January 2...
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 2571, 1995 WL 107058
...revoking the defendant’s probation and imposing community control where the trial court specifically found that the defendant lacked the financial ability to pay the court ordered restitution. See Hewett v. State,
613 So.2d 1305, 1307 (Fla.1993); §
948.06(4), Fla.Stat....
CopyPublished | Florida 6th District Court of Appeal
...obligate the trial court to make affirmative findings, it knows how to do so. See, e.g.,
John Knox Vill. of Cent. Fla., Inc. v. Est. of Lawrence by and through Castleman,
379
So. 3d 1205, 1208 (Fla. 5th DCA 2024). In fact, the legislature does it all the time. See,
e.g., §
948.06(8)(e)1., Fla....
CopyPublished | Florida 4th District Court of Appeal
...n sentencing him as
a violent felony offender of special concern posing a danger to the
community, because no competent substantial evidence existed to support
the court’s finding that he poses a danger to the community under the
factors listed in section 948.06(8)(e)1., Florida Statutes (2012).
On the defendant’s first argument, the state properly concedes error.
See, e.g., Smith v....
...e de novo standard of
review, as well the issue in the case upon which our sister court relied,
Jeffers v. State,
106 So. 3d 37 (Fla. 2d DCA 2013), was whether the court
incorrectly relied on a qualifying offense which the defendant committed
before section
948.06 was enacted....
...That being an issue of law, we would
agree the de novo standard of review applied in those cases.
Here, however, the defendant argues no competent substantial
evidence existed to support the court’s finding that he poses a danger to
the community under the factors listed in section 948.06(8)(e), Florida
Statutes (2012)....
...tion of the evidence, competent
substantial evidence existed to support the court’s ultimate finding that
the defendant poses a danger to the community, and that the circuit court
did not abuse its discretion under the very broad factors listed in section
948.06(8)(e)1., Florida Statutes (2012):
a....
...hich the violation hearing
arises and any other previous supervisions, including
disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.
§
948.06(8)(e)1., Fla. Stat. (2012).
We also note that, irrespective of the circuit court’s findings made
under section
948.06(8)(e), the defendant’s sentence remains legal. See
Whittaker v. State,
223 So. 3d 270, 275 (Fla. 4th DCA 2017) (“[E]ven when
a trial court finds under section
948.06(8)(e) that a defendant designated
4
as a VFOSC poses a danger to the community, this finding has no bearing
on the statutory maximum sentence, but rather is relevant to the decision
whether to revoke probation. Where a trial court imposes a guidelines
sentence on a defendant who has been designated as a VFOSC, the
sentence is legal irrespective of the findings made under section
948.06(8)(e).”) (internal quotation marks and citation omitted).
Based on the foregoing, we affirm the defendant’s statutory maximum
fifteen-year sentence, and reverse only to the extent that the circuit court
did not sentence him as a youthful offender after the violations....
...I concur in the portion of the majority opinion concerning the youthful
offender designation.
I dissent because the record does not support the trial court’s
designation of appellant as a “danger to the community” within the
meaning of section 948.06(8)(e)1., Florida Statutes (2012).
Subsection 948.06(8) creates a special classification of probationer —
a “violent felony offender of special concern.” (“VFOSC”). § 948.06(8)(a),
Fla. Stat. (2012). For offenders on probation, or who are placed on
probation, the key to the VFOSC classification is the commission of a
“qualifying offense,” which is defined as those crimes specified in
subsection 948.06(8)(c).
Appellant committed a qualifying offense because he was placed on
probation and community control for the qualifying offense of burglary of
a dwelling. See § 948.06(8)(c)12., Florida Statutes (2012).
If a person qualifies as a VFOSC, after a court finds that the offender
has committed a violation of probation other than failure to pay costs,
fines, or restitution, the court is required to make written findings as to
whether the offender “poses a danger to the community.” § 948.06(8)(e)1.,
Fla....
...(2012). If the court finds that the offender poses a danger to the
5
community, the court “shall revoke probation and shall sentence the
offender up to the statutory maximum, or longer if permitted by law.”
§ 948.06(8)(e)2.a., Fla....
...probation for burglary, a qualifying offense; (3) at a codefendant’s trial,
appellant made inconsistent statements concerning the codefendant’s
involvement in the burglary. The court revoked appellant’s probation and
sentenced him to 15 years in prison as a VFOSC.
Under section 948.06(8), a “danger to the community” is not a
freewheeling concept unhinged from the statute. Rock and roll music was
once considered dangerous to the morals of teenagers, but that type of soft
danger is outside the purview of the statute.
Reading section 948.06(8) as a whole, the concept of “danger” is
obviously linked to the enumerated offenses that generate the VFOSC
classification. The intent of the statute is to protect Floridians from the
6
type of individuals who commit the crimes enumerated in subsection
948.06(8)(c)1-19....
...All are crimes that directly put a person or body in
physical peril. This view of “danger” under the statute is consistent with
its common meaning: “exposure to harm or injury; risk; peril.” THE
RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 366 (1967). Section
948.06(8)(e)1.a-e sets out factors to guide the trial court in evaluating this
risk.
The record at the danger hearing does not support the trial court’s
finding. Appellant’s marijuana usage is not an offense enumerated in
subsection 948.06(8)(c)1-19....
CopyPublished | Florida 2nd District Court of Appeal
...of Criminal
Procedure 3.190. Ms. Beery argued that her probationary period had expired at the
time of the alleged violation. The State argued that because Ms. Beery had absconded
from probation, her probationary period had been tolled pursuant to section 948.06(1)(f),
Florida Statutes. The trial court agreed with Ms. Beery. We reverse.
Section 948.06(1)(f), Florida Statutes (2012), provides, as relevant here,
that "[u]pon the filing of an affidavit alleging a violation of probation ....
...The trial court ruled this way because it
believed it was bound by the Fourth District's decision in Mobley v. State,
197 So. 3d
572, 573-74 (Fla. 4th DCA 2016), review denied, No. SC16-936,
2016 WL 3149708
(Fla. Jun. 6, 2016).1 In Mobley, the Fourth District held that the text of "[s]ection
948.06(1)(f) is clear that a warrant under section
901.02 is required in order for the
probationary period to be tolled," except in the case of a warrantless arrest or a notice to
appear under the statute....
...absconds from
probation, an exception to its holding in Mobley is triggered, and no warrant is required
to toll the probationary period in that circumstance. See Williams v. State,
202 So. 3d
1Mobley addressed the 2012 version of section
948.06. The language of
that statute has since been amended, but that amended language is not at issue in this
appeal. See State v. Wheeler,
224 So. 3d 852 (Fla. 1st DCA 2017). Ms. Beery has not
stated which version of section
948.06 she believes applies in this case....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 4121, 2012 WL 832666
...The defendant appeals the circuit court’s order revoking his probation on the grounds that he willfully failed to pay restitution and supervision costs as conditions of his probation. He argues he proved that he was unable to pay restitution and supervision costs. See § 948.06(5), Fla....
CopyPublished | Florida 4th District Court of Appeal
...procedure in sentencing him as a VFOSC, where the State did not request
a VFOSC designation and the trial court did not orally pronounce a finding
that he qualified for the designation. Additionally, Appellant points out
that the trial court did not conduct a danger hearing pursuant to section
948.06(8), Florida Statutes (2009), or make any written findings that
Appellant is or is not a danger to the community....
...Appellant’s arguments in this case are
similar to the defendant’s arguments in Whittaker v. State,
223 So. 3d 270
(Fla. 4th DCA 2017). There, the defendant argued that he should have
been given six points on his scoresheet instead of twelve as a VFOSC
because the trial court did not follow the statutory procedure under
section
948.06(8), Florida Statutes, and also argued this Court should
“reverse his sentence and remand for a new sentencing hearing where he
cannot be designated as a VFOSC.” Id....
...but disagreed with the relief on remand. Id. at 273. In Whittaker we said:
[B]ecause a defendant’s designation as a VFOSC does not
depend on a finding that the defendant poses a danger to the
community, a trial court’s failure to make written findings
under section 948.06(8)(e) as to whether a defendant poses a
danger to the community does not entitle the defendant to
have the VFOSC designation stricken.
Id. at 274. Additionally, we stated:
4
A trial court’s finding under section 948.06(8)(e) as to whether
a defendant who qualifies as a VFOSC poses a danger to the
community is significant because it determines whether
revocation of probation is mandatory or discretionary.
§ 948.06(8)(e) 2., Fla. Stat. (2015). However, because a
guidelines sentence “would be legal irrespective of the findings
made pursuant to section 948.06(8)(e),” a trial court’s failure
to make the mandated written findings under section
948.06(8)(e) does not necessitate reinstatement of the
defendant’s probation....
...State,
207 So. 3d 379,
383-85 (Fla. 5th DCA 2016)]. Rather, “the proper remedy is
to reverse the sentencing order and remand for another
sentencing hearing with directions that the trial court make
the necessary written findings under section
948.06(8)(e)
when imposing its sentence.” Id. at 385.
Id. at 274-75.
The same principles apply to this case. It is clear that Appellant
qualifies as a VFOSC. Section
948.06(8) defines a VFOSC, in part, as “a
person who is on . . . [f]elony probation or community control related to
the commission of a qualifying offense committed on or after the effective
date of this act.” §
948.06(8)(b)1., Fla. Stat. (2009). Under the list of
enumerated “qualifying offenses” is murder. §
948.06(8)(c)2., Fla....
...Since Appellant was on probation for murder, he therefore meets
the statutory requirements.
We reverse the sentence imposed in this case and remand for
resentencing with a properly calculated scoresheet. On resentencing the
trial court shall comply with the provisions of section 948.06(8).
Additionally, the written order revoking probation and stating the
conditions of probation the trial court found Appellant violated did not
match the oral pronouncement made during the violation hearing....
CopyPublished | Florida 4th District Court of Appeal
...procedure in sentencing him as a VFOSC, where the State did not request
a VFOSC designation and the trial court did not orally pronounce a finding
that he qualified for the designation. Additionally, Appellant points out
that the trial court did not conduct a danger hearing pursuant to section
948.06(8), Florida Statutes (2009), or make any written findings that
Appellant is or is not a danger to the community....
...Appellant’s arguments in this case are
similar to the defendant’s arguments in Whittaker v. State,
223 So. 3d 270
(Fla. 4th DCA 2017). There, the defendant argued that he should have
been given six points on his scoresheet instead of twelve as a VFOSC
because the trial court did not follow the statutory procedure under
section
948.06(8), Florida Statutes, and also argued this Court should
“reverse his sentence and remand for a new sentencing hearing where he
cannot be designated as a VFOSC.” Id....
...In Whittaker we said:
4
[B]ecause a defendant’s designation as a VFOSC does not
depend on a finding that the defendant poses a danger to the
community, a trial court’s failure to make written findings
under section 948.06(8)(e) as to whether a defendant poses a
danger to the community does not entitle the defendant to
have the VFOSC designation stricken.
Id. at 274. Additionally, we stated:
A trial court’s finding under section 948.06(8)(e) as to whether
a defendant who qualifies as a VFOSC poses a danger to the
community is significant because it determines whether
revocation of probation is mandatory or discretionary.
§ 948.06(8)(e) 2., Fla. Stat. (2015). However, because a
guidelines sentence “would be legal irrespective of the findings
made pursuant to section 948.06(8)(e),” a trial court’s failure
to make the mandated written findings under section
948.06(8)(e) does not necessitate reinstatement of the
defendant’s probation....
...State,
207 So. 3d 379,
383-85 (Fla. 5th DCA 2016)]. Rather, “the proper remedy is
to reverse the sentencing order and remand for another
sentencing hearing with directions that the trial court make
the necessary written findings under section
948.06(8)(e)
when imposing its sentence.” Id. at 385.
Id. at 274-75.
The same principles apply to this case. It is clear that Appellant
qualifies as a VFOSC. Section
948.06(8) defines a VFOSC, in part, as “a
person who is on . . . [f]elony probation or community control related to
the commission of a qualifying offense committed on or after the effective
date of this act.” §
948.06(8)(b)1., Fla. Stat. (2009). Under the list of
enumerated “qualifying offenses” is murder. §
948.06(8)(c)2., Fla....
...Since Appellant was on probation for murder, he therefore meets
the statutory requirements.
We reverse the sentence imposed in this case and remand for
resentencing with a properly calculated scoresheet. On resentencing the
trial court shall comply with the provisions of section 948.06(8).
Additionally, the written order revoking probation and stating the
conditions of probation the trial court found Appellant violated did not
match the oral pronouncement made during the violation hearing....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 650, 1986 Fla. App. LEXIS 6913
...ility to pay such costs. However, these cases were decided prior to the enactment of Chapter 84-337, Laws of Florida, which became effective on June 24, 1984, three days prior to the order placing the appellant on community control. That law amended Section 948.06 by adding subsection 4, which, in pertinent part, reads; (4) In any hearing in which the failure of a probationer or offender in community control to pay restitution or the cost of supervision as provided in s....
CopyPublished | Florida 3rd District Court of Appeal
...encing.2 It now
raises these two issues on appeal.
1
The State filed notices of appeal in both cases. We have consolidated the
two appeals for all purposes.
2
The hearing on whether a probationer poses a danger to the community is
mandated by section 948.06(8), Florida Statutes, a provision originally
enacted as part of the Anti-Murder Act in 2007. The Act defines certain
probationers as Violent Felony Offenders of Special Concern. McKinney
qualifies as a “VFOSC” because one of his underlying convictions was for
robbery. See § 948.06(8)(b)(1) & 948.06(8)(c)(6)....
...dismissing an affidavit charging a violation of probation. §
924.07(1)(a); see
also State v. Gutierrez,
333 So. 3d 806 (Fla. 3d DCA 2022). The State is
also authorized to appeal probation imposed at an initial sentencing following
due to noncompliance with section
948.06(8))....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18828
...He argues, essentially, that he did not violate a condition of probation, that the agency’s findings of fact are not supported by competent, substantial evidence, and that the final order is legally insufficient. We must affirm the order of the Board. Appellant argues that section 948.06, Fla.Stat....
...Webb,
367 So.2d 201 (Fla.1978). The record shows that all members of the Board possessed and reviewed the complete record before increasing the recommended penalty, as required by section
120.57(l)(b)9., Fla.Stat. (1981). 5 AFFIRMED. WENTWORTH and JOANOS, JJ., concur. .
948.06 Violation of probation; revocation; modification; continuance....
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 2571, 2000 WL 263133
...State,
724 So.2d 650 (Fla. 2d DCA 1999). Reversed and remanded for resentenc-ing and entry of revocation order. CAMPBELL, A.C.J., and BLUE, J., Concur. . Although the trial court gave appellant credit for time previously served in prison, pursuant to section
948.06(7), Florida Statutes (1997), appellant would forfeit all previously earned gain-time and time for good conduct....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 1761, 1996 WL 86773
PER CURIAM. Prince Turner challenges the trial court’s denial of his motion treated, but not identified, as one filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he complains that the operation of section 948.06(6), Florida Statutes (1989), deprives him of the benefits of a plea in which he was promised credit for the entire ten years imposed earlier as the incarcerative portion of a split sentence on a new fifteen-year term following a violation of community control....
CopyPublished | Florida 1st District Court of Appeal | 1990 Fla. App. LEXIS 1284, 1990 WL 19940
...dismiss an affidavit of violation of community control/probation. On appeal, appellant contends: (1) that the court erred in modifying his community control/probation based solely on an “Acknowledgment and Waiver” form in lieu of compliance with Section 948.06 Florida Statutes; (2) that the court erred in denying appellant’s motion to dismiss because he was denied his right to counsel at the time of admission; and (3) that the court erred in failing to dismiss where the sole violation was alleged to have occurred prior to the entry of the purported modification order....
...obation and the denial of the motion to dismiss are vacated, and the cause is remanded for further proceedings consistent with this opinion. For the reasons stated in Holcombe , we certify as a question of great public importance the following: DOES SECTION 948.06 FLORIDA STATUTES, PROVIDE THE SOLE MEANS BY WHICH A PROBATIONARY OR COMMUNITY CONTROL TERM MAY BE MODIFIED? IF NOT, MAY THE COURT ENTER AN ORDER MODIFYING PROBATIONER COMMUNITY CONTROL BY IMPOSING ADDITIONAL TERMS OR CONDITIONS BASED S...
CopyPublished | Florida 5th District Court of Appeal | 1985 Fla. App. LEXIS 12573, 10 Fla. L. Weekly 548
the *240effective date of an amendment to section
948.06(1), Florida Statutes (1988), which is controlling
CopyPublished | Florida 6th District Court of Appeal
...count one would have ended on
March 31, 2021, her term of probation on count one was tolled due to her arrest for
violation of probation and the filing of an affidavit alleging a violation of her
probation and the issuance of a warrant thereon. See § 948.06(1)(g), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Prior to and during the pendency of this appeal, Morris did not file in
the lower tribunal a motion pursuant to Florida Rule of Criminal Procedure
3.800(b).
Morris contends he is entitled to a new sentencing hearing because
the trial court failed to comply with the statutory requirements under the
VFOSC statute—section 948.06(8)(e)—by failing to make written findings as
to whether he poses a danger to the community....
...ies as a VFOSC and is found to
3
violate a non-monetary condition of probation, the trial court is required to
make written findings as to whether the probationer poses a danger to the
community pursuant to section 948.06(8)(e), Florida Statutes (2022). “The
written findings requirement of section 948.06(8)(e) is mandatory, not
discretionary.” McCray v....
...State,
283 So. 3d 406, 408 (Fla. 3d DCA 2019). If
the trial court finds that the VFOSC poses a danger to the community, the
trial court “shall revoke probation and shall sentence the offender up to the
statutory maximum, or longer if permitted by law.” §
948.06(e)(2)a., Fla....
...However, if the trial court determines that the VFOSC does not pose
a danger to the community, the trial court “may revoke, modify, or continue
the probation or community control or may place the probationer into
community control as provided in this section.” § 948.06(e)(2)b., Fla....
CopyPublished | Florida 3rd District Court of Appeal
...rred in revoking
his community control because although he admitted to violating his
community control, the trial court never made the specific finding that Diaz’s
violations were willful and substantial. We find this argument meritless.
Section 948.06(2)(a), Florida Statutes, sets forth a trial court’s basic
duties in a violation of probation or community control proceeding where a
probationer admits to violating the terms of probation of community control:
The cour...
...2d 421, 423 (Fla.
1st DCA 2005) (“Appellant’s failure to report to his supervising officer in a
timely manner constitutes a substantial, willful violation of the terms of his
community control.”).
Importantly, the trial court noted Diaz was a violent felony offender of
special concern. Pursuant to section 948.06(9)(d)1., Florida Statutes, a
defendant who is a violent felony offender of special concern is “not eligible
for an alternative sanction,” such as placement in a residential treatment
program if they violate their community control....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 2012147, 2012 Fla. App. LEXIS 9012
...[W]hether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer’s ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011),[ 5 ] which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional....
...Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State’s evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by *1133 the heightened standard of clear and convincing evidence is unconstitutional....
...d (2) in a civil enforcement action where incarceration is not at stake, the probationer is held only to a preponderance of the evidence standard to demonstrate his or her financial resources. We further consider that the Legislature has not amended section 948.06(5) with respect to placing the burden on the probationer to prove inability to pay by clear and convincing evidence since adding the requirement in 1984 — at which time the financial resources of the defendant were a factor that the...
...for debt, despite an explicit protection in Florida’s Constitution against imprisonment for debt. See art. I, § 11, Fla. Const. This risk is constitutionally unacceptable. Id. at 1013-15. In light of the supreme court’s recent interpretation of section 948.06(5), it is clear that the trial court erroneously shifted the burden of proof to appellant to prove inability to pay by clear and convincing evidence....
...gested that Johnson's cell phone was a “luxury item.” The trial court disagreed: “Okay, I'm having a hard time believing a cell phone nowadays is a luxury, especially when you’ve got five kids.” . As noted by the court, the 2008 version of section 948.06(5) at issue in Del Valle , and the case at bar, is identical to the current 2011 version of the statute.
CopyPublished | Florida 4th District Court of Appeal
...In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record. [Emphasis added. Footnotes omitted.] Id. at 787-91,
93 S.Ct. 1762-64,
36 L.Ed.2d 664-67. When the foregoing decisions were reached, Florida already had in place section
948.06(1), Florida Statutes (1969), which provided and still provides: Whenever within the period of probation there is reasonable ground to believe that a probationer has violated his probation in a material respect, any parole or probation...
...with failure to make monthly reports, or to pay monthly assessed costs or to keep a supervisor informed of his address all of which can result in violation of probation and imprisonment is entitled to be advised. Its expression is contained in Section 948.06(1), quoted above....
...t Court of Appeal finds support in the parallel case of Baldwin v. Benson,
584 F.2d 953 (10th Cir.1978). The situation facing the court in that post- Gagnon decision was identical to that which would occur if the Florida Legislature were to amend Section
948.06(1) tomorrow, statutorily authorizing implementation of the "per se" rule....
CopyPublished | Florida 4th District Court of Appeal
...or
probation officer had filed a technical violation of curfew. Milanes was
never found to have violated curfew at that time, as no Affidavit of Violation
was even filed, nor is there a notification letter of a technical violation in
the record. See § 948.06(1)(h), Fla....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 15892
...e arrest of appellant. However inartful it may be to term the procedure “temporary revocation” we must look to the substance of what occurred. Since appellant did not admit to any violation of his probation he was released on bail as provided by Section 948.06(1), Florida Statutes (1975)....
CopyPublished | Supreme Court of Florida | 1954 Fla. LEXIS 1560
26, Chapter 20519, Laws of Florida 1941 [F.S.A. §
948.06], and “It is further ordered and adjudged that
CopyPublished | Florida 3rd District Court of Appeal | 1984 Fla. App. LEXIS 13785
probation even if the charge is admitted or proved. Section
948.06, Florida Statutes. Id. at 179. As footnote
CopyPublished | Florida 5th District Court of Appeal | 1991 WL 105615
...when the defendant served the prison sentence on the first offense but violated probation as to the second offense, the trial court could then "impose any sentence which it might have originally imposed before placing the probationer on probation" (Section 948.06(1), Florida Statutes) and the prison sentence on the first offense in no way restricted the sentence on the second offense as to which the defendant had been placed on, and violated, probation....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 2661710, 2013 Fla. App. LEXIS 9428
...We affirm the revocation without further comment, but we reverse the sentence and remand for the circuit court to resentence Daniels based on a corrected scoresheet. After Daniels admitted to violating his probation, the court held a “danger hearing” to determine whether Daniels posed a danger to the community. See § 948.06(8)(d), Fla. Stat. (2009). The hearing was required because Daniels previously had been convicted of murder in 1996. See § 948.06(8)(d)(l), (b)(2), (c)(2)....
CopyPublished | Florida 4th District Court of Appeal | 1995 Fla. App. LEXIS 6385, 1995 WL 353429
PER CURIAM. We reverse appellant’s sentence and remand with direction to reconsider the credit for gain-time to be awarded to appellant. Section 948.06(6), Florida Statutes (1989), provides in pertinent part that upon revocation of probation or community control, gain time accrued prior to release on probation or community control may be deemed to be forfeited....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 6530, 1997 WL 314816
...Furthermore, the record reflects that the trial court based the length of the appellant’s sentence on the incorrect assumption that the appellant was entitled to receive credit for the tíme he served on community control. In fact, the appellant is not entitled to such credit. § 948.06, Fla....
CopyPublished | Florida 1st District Court of Appeal
...1985) (“As
we have stated previously, this process constitutes a deferred
sentencing proceeding.”); Shields v. State,
296 So. 3d 967, 972 (Fla.
2d DCA 2020) (“[A] sentencing after a revocation of probation is,
for all intents and purposes, just a resentencing on the original
offense.”); see also §
948.06(2)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal
...to transfer his case to veterans’ court pursuant to section
948.08(7),
Florida Statutes (2018).
Section
948.08(7) provides, in pertinent part:
(a) Notwithstanding any provision of this section, a person
who is charged with a felony, other than a felony listed in s.
948.06(8)(c), and identified as a veteran, as defined in s....
...intervention program.
§
948.08(7), Fla. Stat. (2018) (emphasis added).
The defendant’s motion and a later memorandum alleged he was
eligible for voluntary admission into veterans’ court because: he was not
charged with a felony listed in section
948.06(8)(c); he is a veteran
receiving service-related psychological therapy; he had not been previously
offered admission to a pretrial veterans’ treatment intervention program;
and he had not previously entered a court-ordered veterans’ treatment
program....
...after year after year, be facing felony DUI; and otherwise . . .
be eligible for diversion. . . . [B]oth of those would be absurd
results.
Career criminals could get diversion programs, not to
mention that most of . . . the [enumerated excluded offenses
listed in section 948.06(8)(c)] involve victims....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 8917, 2015 WL 3631643
...Appellant appeals the order revoking his probation and sentencing him to thirty months in the Department of Corrections. We affirm as to all issues raised, but note that the sentencing order contains a finding that Appellant was a danger to the community under section 948.06(8)(e)2.a., Florida Statutes (2013)....
CopyPublished | Florida 1st District Court of Appeal
...which he had already served by the time the order was rendered,
plus two years of community control and two additional years of
probation. That modification could only have been authorized by
the trial court’s properly determining that a violation had
occurred. See § 948.06(2)(e), Fla....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 6630, 1994 WL 321707
...Because appellant’s crimes were committed after October 1, 1989, the effective date of the act, the trial court properly denied appellant credit for gain time. Bradley,
631 So.2d at 1097 ; Tripp,
622 So.2d at 942 n. 2. The trial court is clearly authorized to forfeit gain time. Bradley,
631 So.2d at 1097 ; §
948.06(6), Florida Statutes....
...Appellant maintains that the loss of gain time is not automatic, therefore, this case should be remanded for the trial court to announce on the record that in its sound discretion it is either allowing or disallowing credit for previously earned gain time. Section 948.06(6) provides that when probation or community control is violated, the offender may be deemed to have forfeited all gain time....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 9118, 1999 WL 454515
...ring. Petitioner advised that the presiding judge would not entertain a hearing in her case until July 6, 1999 at the earliest. This court already has granted this petition by order, but now issues this opinion to explain its rationale for doing so. Section 948.06(1), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2017 WL 2858904, 2017 Fla. App. LEXIS 9641
...for appellee.
TAYLOR, J.
Kenneth Whittaker appeals the sentence imposed after the trial court
revoked his probation. We reverse and remand for the trial court to: (1)
hold a new sentencing hearing and make the necessary written findings
under section 948.06(8)(e), Florida Statutes (2015); (2) strike the $400
public defender fee without prejudice to the fee being reimposed on
remand after the proper procedure is followed; and (3) enter a written order
of revocation of probation specifying...
...The trial court also assessed
a $400 public defender fee without notice or a hearing.
The disposition order indicated that appellant was “not a danger” and
that appellant’s probation was revoked. However, the disposition order
did not indicate that the trial court considered any of the factors set forth
in section 948.06(8)(e)1.a.–e., Florida Statutes (2015)....
...4th DCA 2016).
On appeal, appellant first argues that the trial court failed to comply
with the statutory procedure governing a violation of probation by a violent
felony offender of special concern (“VFOSC”), as the trial court did not
make the “danger” finding using the statutorily enumerated factors under
section 948.06(8)....
...ted relief. The state argues
that the VFOSC designation should not be removed and that the proper
remedy is to reverse the sentencing order for another sentencing hearing
with directions that the trial court make the necessary written findings
under section 948.06(8)(e)1.
2
A “violent felony offender of special concern” includes a person who is
on felony probation or community control related to the commission of a
qualifying offense committed on or after the effective date of the Act. §
948.06(8)(b)1., Fla. Stat. (2015). The term “qualifying offense” includes
aggravated battery. § 948.06(8)(c)3., Fla....
...If the court has found that a violent felony offender of
special concern 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 this section.
§ 948.06(8)(e), Fla. Stat. (2015) (emphasis added).
“[T]he written findings requirement of section 948.06(8)(e) is
mandatory, not discretionary.” Barber v....
...determination, and that decision must be based on one or more of them.”
Id.
Nonetheless, because a defendant’s designation as a VFOSC does not
depend on a finding that the defendant poses a danger to the community,
a trial court’s failure to make written findings under section 948.06(8)(e)
as to whether a defendant poses a danger to the community does not
entitle the defendant to have the VFOSC designation stricken. In Barber,
the Fifth District conducted an exhaustive analysis of section 948.06(8)
and explained:
For purposes of our discussion, section 948.06(8) can be
analyzed in two parts....
...The first part deals with provisions that
pertain to the requirements that must be met to qualify a
person as a violent felony offender of special concern, which
include provisions for pretrial detention for those who qualify.
See § 948.06(8)(b)-(d), Fla....
...The second part deals with sentencing of
individuals who are found by the trial court to be in violation
of a non-monetary condition and who are violent felony
offenders of special concern found to pose a danger to the
community. See § 948.06(8)(e), Fla....
...In Bailey, the court was concerned with the
sufficiency of the written findings filed by the trial court to
support its conclusion that the defendant qualified as a
violent felony offender of special concern who posed a danger
to the community under section
948.06(8)(e). Id. at 620–21.
The court noted that the defendant did not contest the fact
that he qualified for designation under sections
948.06(b)-(d).
Id. at 619. The court held that, because the written findings
were insufficient for the designation under section
948.06(8)(e), the designation must be stricken. Id. at 620–21.
There is nothing in the opinion indicating that the court meant
to strike the designation under sections
948.06(8)(b)-(d).
Id. at 383.
A trial court’s finding under section
948.06(8)(e) as to whether a
defendant who qualifies as a VFOSC poses a danger to the community is
significant because it determines whether revocation of probation is
mandatory or discretionary. §
948.06(8)(e)2., Fla. Stat. (2015). However,
because a guidelines sentence “would be legal irrespective of the findings
made pursuant to section
948.06(8)(e),” a trial court’s failure to make the
mandated written findings under section
948.06(8)(e) does not necessitate
reinstatement of the defendant’s probation. See Barber,
207 So. 3d at
383–85. Rather, “the proper remedy is to reverse the sentencing order and
remand for another sentencing hearing with directions that the trial court
make the necessary written findings under section
948.06(8)(e) when
imposing its sentence.” Id....
...at 385.
Here, the trial court did make a conclusory written finding that
appellant was “not a danger” to the community, but there is no indication
in the disposition order that the trial court based its finding on one or more
5
of the factors set forth in section 948.06(8)(e)1.a.–e....
...3d at 620 (“While the
trial court did place an ‘X’ on the line indicating that it found Bailey to be
a violent felony offender of special concern who posed a danger to the
community, the court did not place an ‘X’ in any of the blanks to indicate
which specific facts listed in section 948.06(8)(e) it was relying on to find
that Bailey qualified as such.”).
Appellant is not entitled, however, to have the VFOSC designation
stricken. Appellant indisputably qualifies as a VFOSC under section
948.06(8)(b)–(c). This designation does not depend on a finding as to
whether he poses a danger to the community. Regardless of the adequacy
of the trial court’s findings under section 948.06(8)(e), the trial court
correctly imposed 12 points on appellant’s scoresheet due to his violation
of probation as a VFOSC....
...at 1257.
In contrast to Bryant, and contrary to appellant’s argument, a VFOSC
designation is not “effectively an upward departure.” The VFOSC
designation is based on a defendant’s criminal history, and does not
depend on whether the trial court has made the required written findings
pursuant to section 948.06(8)(e)....
...d departure from the sentencing
guidelines.
1 The Bryant court recognized an exception for cases involving habitual felony
offender sentencing. Id. at 1259.
6
Moreover, even when a trial court finds under section
948.06(8)(e) that
a defendant designated as a VFOSC poses a danger to the community, this
finding has no bearing on the statutory maximum sentence, but rather is
relevant to the decision whether to revoke probation. Where a trial court
imposes a guidelines sentence on a defendant who has been designated as
a VFOSC, the sentence is “legal irrespective of the findings made” under
section
948.06(8)(e). Barber,
207 So. 3d at 384. Thus, unlike the situation
in Bryant where the required written findings were necessary to support
an upward departure, a trial court’s failure to make the required written
findings under section
948.06(8)(e) is not the type of sentencing error that
cannot be corrected on remand.
Under the specific facts of this case—where the trial court found that
appellant was not a danger to the community and imposed a guidelines
sentence—...
...imposed is without merit. Put simply, the present case does not involve
an upward departure sentence.
Based on the foregoing, we reverse and remand “for another sentencing
hearing with directions that the trial court make the necessary written
findings under section 948.06(8)(e) when imposing its sentence.” Barber,
207 So....
CopyPublished | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 423, 2007 Fla. LEXIS 1192, 2007 WL 1932238
...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 restituti...
...r 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....
CopyPublished | Florida 1st District Court of Appeal
...n County.
Melissa G. Olin, Judge.
July 30, 2025
OSTERHAUS, C.J.
Some felony probationers who commit a “low-risk” violation of
probation may not have their probation revoked and replaced with
a prison sentence. § 948.06(2)(f)1., Fla. Stat. Ty Christopher
Garmany argues that he qualified under this statute to have
avoided the five-year prison sentence rendered by the trial court.
We agree with Garmany’s argument that he passed most of
§ 948.06(2)(f)1.’s four-part test for avoiding a prison sentence,
including the § 948.06(2)(f)1.d....
...condition involving a first “current
term” violation. But we nonetheless affirm Garmany’s sentence.
He didn’t qualify to avoid a prison sentence because his VOP
wasn’t a “low-risk” technical violation as defined in the third part
of the statutory test, see § 948.06(2)(f)1.c.
I.
After Garmany pled guilty in 2022 to official misconduct
arising from his position as a law enforcement officer, the trial
court withheld adjudication and placed him on probation for five
years....
...After the State discovered his ruse,
Garmany admitted to lying to the officer about who he was visiting
thereby violating his probation. At the probation revocation
hearing, Garmany argued that he could not be sentenced to prison
for his new VOP because the mandatory probation reinstatement
provision in § 948.06(2)(f)1....
...d VOP in the case.
The court agreed with the State. It revoked Garmany’s probation
and sentenced him to five years in prison. Garmany appealed.
II.
On appeal, Garmany argues that he met all four conditions of
§
948.06(2)(f)1.a.-d., so that the trial court could not lawfully
resentence him to a five-year prison term. See Owens v. State,
303
So. 3d 993, 998 (Fla. 1st DCA 2020) (holding that a probationer
must meet all four requirements to qualify for sentencing under
section
948.06(2)(f)). Section
948.06(2)(f)1....
...conditions of this statute in (f)1.a. and b. Rather, the parties
dispute whether Garmany satisfied (f)1.c. and d.
Focusing on the fourth condition in (f)1.d., Garmany argues
that he committed just a single VOP during “the current term” of
supervision. § 948.06(2)(f)1.d., Fla....
...probationary term. Indeed, the court had already revoked
Garmany’s original 5-year probation term (pursuant to a different,
State-filed affidavit in 2023), which led to an adjudication of guilt
and to Garmany receiving a prison-plus-probation sentence. Under
§
948.06(2)(f)1.d.’s “current term” parameter, Garmany argues
that the statute disregards the first VOP and revocation, looking
only to whether another VOP was found during the ”current term”
of probation. Id.
The State counters with two arguments that Garmany failed
to meet the requirements of §
948.06(2)(f)1. First, it defends the
court’s conclusion that Garmany didn’t meet
948.06(2)(f)1.d.’s
condition allowing for only a single VOP “during the current term”
of supervision because of Garmany’s previous VOP. See Schmidt v.
State,
310 So. 3d 135, 137 (Fla. 1st DCA 2020) (conditioning the
application of §
948.06(2)(f)1....
...The State adds a second argument
3
under paragraph (f)1.c., a tipsy coachman argument, that
Garmany’s violation also did not qualify under the statute as “a
low-risk technical violation, as defined in paragraph (9)(b).” See
§ 948.06(2)(f)1.d., Fla. Stat.
Addressing, first, the “current term of supervision” issue, we
agree with Garmany. Section 948.06 provides for the possibility of
multiple terms of supervision within the same case in at least a
couple of places. The statute at issue here, § 948.06(2)(f)1.d.,
conditions benefits based upon whether a VOP occurs during the
“current” term of supervision. The statute’s focus on the current
term guides us toward disregarding VOPs from other, previous
terms of supervision if they exist in a case, such as they do here.
Additionally, § 948.06(3) recognizes the potential for multiple
terms of supervision or probationary terms within a single case by
providing that: “When the court imposes a subsequent term of
supervision following a revocation of probation or community
control, it shall not provide credit for time served while on
probation or community control toward any subsequent term of
probation or community control.” (Emphasis added.) These clues
within § 948.06 lead to the conclusion that different probationary
terms may exist within a defendant’s single case....
...officer about visiting his “aunt.” This violation only jeopardized the
second, current term of probation. And because the trial court
hadn’t previously found a VOP during Garmany’s “current term”
4
of supervision, he wasn’t precluded by § 948.06(2)(f)1.d. from
receiving the statute’s protection against a prison sentence.
Contrary to the State’s argument, it’s not absurd to interpret
the “current term” provision in § 948.06(2)(f)1.d., to distinguish
between VOPs occurring during different probationary terms in a
case....
...Willis,
41 So. 3d 270, 279 (Fla. 1st DCA
2010).
On the State’s second argument for affirmance, the tipsy-
coachmen issue, we agree with its categorization of Garmany’s
violation. Specifically, the State argues that the trial court wasn’t
required by §
948.06(2)(f)(1) to limit Garmany’s sentence because
his violation did not meet the definition of a “low-risk technical
violation, as defined by paragraph (9)(b)”—the third condition
prescribed by §
948.06(2)(f)1.c....
...Leaving the county without permission.
9. Failure to report a change in employment.
10. Associating with a person engaged in criminal
activity.
11. Any other violation as determined by administrative
order of the chief judge of the circuit.
§ 948.06(9)(b), Fla....
...violations, like in the mitigating circumstances statute regarding
downward departure, see §
921.0026(1), Fla. Stat. Although
Garmany’s violation is obviously technical in nature, it isn’t
captured among the violations that can receive the benefit of
§
948.06(2)(f)(1)....
...text are of paramount concern, and what they convey, in their
context, is what the text means.’”). Because Garmany’s violation is
not one of the violations enumerated on the (9)(b) list, his violation
cannot be considered a low-risk technical violation for purposes of
§ 948.06(2)(f)1.c. Hence, § 948.06(2)(f)1 did not prevent the trial
court from revoking Garmany’s probation nor from sentencing him
to prison.
AFFIRMED.
ROBERTS and BILBREY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
CopyPublished | Florida 4th District Court of Appeal | 1976 Fla. App. LEXIS 13958
...4th DCA 1973). Petition for habeas corpus GRANTED. MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur. . “949.11 Hearing. — Any person whose parole or probation agreement is revoked pursuant to § 949.10 shall be given a hearing pursuant to §
947.23 or §
948.06. The hearing shall be held within ten days from the date of such arrest, the provisions of §
947.23 or §
948.06 notwithstanding....
CopyPublished | District Court of Appeal of Florida
de novo. Robinson, 205 So. 3d at 590. Section
948.06(8)(b), Florida Statutes (2018), defines a “violent
CopyPublished | Florida 3rd District Court of Appeal | 14 Fla. L. Weekly 1779, 1989 Fla. App. LEXIS 4240, 1989 WL 82149
...ent, with the remainder after 3½ years to be served on probation. He contends that the sentences imposed, when added to the time he had served on probation before revocation, exceed the maximum 5 year penalty for third degree felonies. We disagree. Section 948.06(1), Florida Statutes (1987) authorizes the court, upon revocation of probation, to “impose any sentence which it might have originally imposed before placing the ......
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 10127, 2009 WL 2194510
...ay be dealt with according to law."). Under the facts of this case, the purpose underlying the warrant requirement was satisfied and the issuance of an arrest warrant would have been redundant. See Jones,
964 So.2d at 171 (Orfinger, J., concurring). Section
948.06(1), Florida Statutes (1997), states in pertinent part: Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control *76 has violated his or her probation or community control in a material respect, any......
...such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control. This language expressly authorized Officer Cotignola to arrest Mr. Tatman without a warrant. See Grubbs v. State,
373 So.2d 905, 908 (Fla.1979) (interpreting §
948.06, Fla....
...Tatman was lawfully arrested and brought before the court. Thus the issuance of an arrest warrant here was not necessary to set the revocation process in motion. The Fifth District's decision in Jones does not compel a different result. In Jones, the Fifth District interpreted the 2003 version of section 948.06(1)....
...arrest warrant was unnecessary because Mr. Jones had been arrested before the probationary period expired and the arresting officer knew about his probationary status. Id. The Fifth District rejected this argument because, unlike the 1977 version of section 948.06 interpreted by the Grubbs court, the 2003 version of that statute expressly required the filing of an affidavit of violation of probation and the issuance of an arrest warrant before the probationary period would be tolled....
...Mr. Jones' probation. Id. at 171. Jones is distinguishable from this case for two reasons. First, an affidavit of violation of community control was filed before Mr. Tatman's term of community control expired. Second, like in Grubbs, the version of section 948.06(1) applicable to this case does not include a tolling provision that requires the filing of an affidavit of violation of probation or the issuance of an arrest warrant....
CopyPublished | Florida 3rd District Court of Appeal
.... relief”); see also Chesson v. State,
729 So. 2d 974, 975 (Fla. 3d DCA
1999) (“[A]n illegal sentence is one that exceeds the maximum period set
forth by law for a particular offense without regard to the guidelines.”)
(citations omitted); §
948.06(1)(g), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Ashley Moody, Attorney General, and Michael W. Mervine, Chief
Assistant Attorney General, for appellee.
Before LINDSEY, MILLER and BOKOR, JJ.
PER CURIAM.
Affirmed. See Schmidt v. State,
310 So. 3d 135, 137 (Fla. 1st DCA
2020) (“The statute [section
948.06(2)(f)1.c.] thus limits the probationers
eligible for sentencing under the statute to probationers with only one
technical violation....
CopyPublished | Florida 2nd District Court of Appeal
...violations.
The trial court deemed Aribu to be a violent felony offender of
special concern who posed a danger to the community. As a result, the
trial court was required to revoke Aribu's probation and sentence him up
to the statutory maximum. See § 948.06(8)(e)(2)(a), Fla....
...in the trial
court's decision to find that he posed a danger to the community. Had
the trial court not made such a finding, it would have had the discretion
to revoke, modify, or continue Aribu's probation or to place him into
community control. See § 948.06(8)(e)(2)(b)....
CopyPublished | Florida 1st District Court of Appeal
...olations
occur, they could have agreed for him to be sentenced to five years
probation. The incentive to comply with the terms of probation is
the possibility of revocation, extension, or modification of
probation, in the event of noncompliance. See §
948.06(2), Fla.
Stat. (permitting a court to revoke, modify or continue probation
upon violation); Patrick v. State,
336 So. 2d 1253, 1254 (Fla. 1st
DCA 1976) (noting that section
948.06 permits extension of the
period of probation)....
...t the parties had
to comply with the agreement and the court was right to enforce
it.
If a defendant breaches the probationary requirements of a
plea agreement, the State can enforce the agreement using the
violation of probation procedures in section 948.06, Florida
Statutes....
CopyPublished | Supreme Court of Florida
...h 12, 2007, if the community sanction
- 37 -
violation that is not based upon a failure to pay fines, costs, or restitution is
committed by a violent felony offender of special concern as defined in s.ection
948.06, Florida Statutes, twelve12 community sanction violation points must be
assessed or if the violation results from a new felony conviction, 24 community
sanction points must be assessed....
...apply credit for time served on case/count . (Offenses committed between October 1,
1989, and December 31, 1993.)
The Court deems the unforfeited gain time previously awarded on the above case/count
forfeited under section
948.06(7), Florida Statutes.
The Court allows unforfeited gain time previously awarded on the above case/count.
(Gain time may be subject to forfeiture by the Department of Corrections under section
944.28(1), Florida St...
CopyPublished | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1767, 1985 Fla. App. LEXIS 14395
1983, the effective date of an amendment to section 948.-06(1), Florida Statutes. The amendement provided
CopyPublished | Florida 2nd District Court of Appeal | 1985 Fla. App. LEXIS 14397, 10 Fla. L. Weekly 1768
1983, the effective date of an amendment to section 948.-06(1), Florida Statutes. The amendment provided
CopyPublished | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1768, 1985 Fla. App. LEXIS 14396
1983, the effective date of an amendment to section 948.-06(1), Florida Statutes. The amendment provided
CopyPublished | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1767, 1985 Fla. App. LEXIS 14392
1983, the effective date of an amendment to section 948.-06(1), Florida Statutes. The amendment provided
CopyPublished | District Court of Appeal of Florida
Davis presented a danger to the community under section
948.06, Florida Statutes (2017), because the court
CopyPublished | Florida 4th District Court of Appeal
...MAY, J.
The State appeals an order reinstating the defendant’s probation after
he admitted a violation of probation. It argues the trial court erred in
failing to hold a danger hearing and in failing to make the required written
findings under section 948.06(8), Florida Statutes (2013)....
...port. The defendant
admitted the violations.
The State argued that the trial court was required to conduct a danger
hearing because the defendant was a Violent Felony Offender of Special
Concern (“VFOSC”) based on a prior robbery conviction. § 948.06(8), Fla.
Stat. (2013). The State further argued that section 948.06(8)(e) required
the court to make written findings. The trial court found that section
948.06(8) did not require a danger hearing or written findings when a
probationer admits a violation of probation.
[T]he Court is going to enter a finding that 948.06 subsection
(8) does not require the Court to have a separate formal danger
hearing upon accepting of either a negotiated or open
admission to a violation of probation from someone who’s
subject to the provisions of th...
...include a mental health evaluation and follow-up treatment. From this
order, the State now appeals.
We have de novo review of issues involving statutory interpretation.
E.A.R. v. State,
4 So. 3d 614, 629 (Fla. 2009).
The State maintains that section
948.06(8) requires a danger hearing
and written findings as to whether the defendant poses a danger to the
community. The defendant responds that the court correctly found a
danger hearing unnecessary because the State failed to prove he qualified
as a VFOSC. Alternatively, the defendant argues that section
948.06(8)
does not require a danger hearing unless he unsuccessfully seeks
dismissal of the violation. We agree with the State.
The legislature enacted the Anti-Murder Act in 2007, amending section
948.06, Florida Statutes, to add subsection (8), and requiring an
amendment to the Florida Rules of Criminal Procedure....
...The Anti-Murder Act “concerns the release of violent felony
offenders of special concern and certain other offenders who are arrested
for committing a material violation of probation or community control.” Id.
at 1188.
Under the Act, “[s]ection
948.06(8) imposes additional requirements on
the trial court when a probationer before it on revocation proceedings is a
[VFOSC].” Bailey v. State,
136 So. 3d 617, 618 (Fla. 2d DCA 2013); see §
948.06(8)(a), Fla....
...n or after the
effective date of this act;
2. Felony probation or community control for any offense
committed on or after the effective date of this act, and has
previously been convicted of a qualifying offense;
....
§
948.06(8)(b)1.–2., Fla. Stat. Subsection (c) lists nineteen “qualifying
offenses,” including “[r]obbery or attempted robbery under s.
812.13.” Id.
§
948.06(8)(c)6.
Here, the defendant’s scoresheet listed a prior conviction for robbery,
an enumerated qualifying offense under
948.06(8)(c)6. The defendant was
on probation for throwing a deadly missile into a vehicle, which is a second
degree felony. §
790.19, Fla. Stat. (2010). Therefore, the defendant
qualified as a VFOSC under section
948.06(8)(b)2.
The defendant argues, however, that the State failed to prove that he
was a VFOSC....
...have more points to score on the scoresheet because [he is] VFO qualified.”
Thus, Alcantara does not support the defendant’s argument. Because the
defendant was undisputedly a VFOSC, the trial court was required to
adhere to the requirements of section 948.06(8).
The defendant next argues a danger hearing was unnecessary because
he admitted to his probation violations....
...If the court has found that a violent felony offender of
special concern 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 this section.
§ 948.06(8)(a), (d)–(e), Fla....
...4
Subsection (8)(d) now prohibits a court from dismissing a probation
violation warrant if the probationer is a VFOSC “without holding a
recorded violation-of-probation hearing at which both the state and the
offender are represented.” § 948.06(8)(d), Fla....
...crime violating that trust only to be restored to the same or equivalent
status.” State v. Martinez,
103 So. 3d 1013, 1016 (Fla. 3d DCA 2012).
The court did not hold the required danger hearing and also failed to
make the required written findings under section
948.06(8)....
CopyPublished | Florida 3rd District Court of Appeal
...3d DCA 2023)
(noting that Swain did not preserve for appellate review his sentencing error
claim—that the trial court erred in entering an order designating him a Violent
Felony Offender of Special Concern following the violation of his probation
where the order failed to make written findings, as required by section
948.06(8)(e), Florida Statutes (2022), as to whether Swain poses a danger
to the community; stating that to preserve a sentencing error claim for
appellate review, the claim must be raised “either at the time of sentencing
or by way of...
CopyPublished | Florida 5th District Court of Appeal
concern, would pose a danger to the community. See §
948.06(8)(e)1., Fla. Stat. (2018) ("If the court, after
CopyPublished | Florida 5th District Court of Appeal
concern, would pose a danger to the community. See §
948.06(8)(e)1., Fla. Stat. (2018) ("If the court, after
CopyPublished | Florida 4th District Court of Appeal | 2006 Fla. App. LEXIS 11526, 2006 WL 1896309
...expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S....
CopyPublished | Florida 4th District Court of Appeal
...Appellant admitted the allegations in the affidavit.
Because appellant was on felony probation for an aggravated battery
committed after the effective date of Florida’s Anti-Murder Act, appellant
qualified as a Violent Felony Offender of Special Concern (“VFOSC”). §
948.06(8)(c), Fla....
...A corrected scoresheet would reduce
appellant’s lowest permissible sentence to 34.05 months. Thus, the record
does not conclusively show that the same sentence would have been
3
imposed using a correct scoresheet.
Danger-to-the-Community Findings
Section 948.06(8)(e)1., Florida Statutes (2017), states that if the court
determines that a VFOSC has committed a violation of probation other
than a failure to pay costs, fines, or restitution, the court shall “[m]ake
written findings as to whethe...
...violation
hearing arises and any other previous supervisions, including
disciplinary records of previous incarcerations.
d. The weight of the evidence against the offender.
e. Any other facts the court considers relevant.
§ 948.06(8)(e)1., Fla. Stat. (2017).
“[T]he written findings requirement of section 948.06(8)(e) is
mandatory, not discretionary.” Barber v....
...Moreover, a disposition order is deficient where the trial
court makes only a conclusory written finding as to whether a defendant
poses a danger to the community, and “there is no indication in the
disposition order that the trial court based its finding on one or more of
the factors set forth in section 948.06(8)(e)1.a.-e.” Whittaker v....
...finding on any of the factors set forth in the statute.
4
Here, notwithstanding the State’s apparent concession of error on this
sub-issue, we conclude that the trial court satisfied the written findings
requirement of section 948.06(8)(e). The trial court made written findings
as to whether appellant posed a danger to the community, and the court’s
order indicated that the court based its findings on several of the factors
set forth in section 948.06(8)(e)1.a.-e. The statute required nothing more.
In sum, the trial court made adequate written findings under section
948.06(8)(e).
Failure to Specify Conditions Violated
Finally, we remand for entry of a written revocation order specifying the
conditions of probation that appellant violated....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 9656, 27 Fla. L. Weekly Fed. D 1576
...e specified times is. indeed a vital component of a community control program.” State v. Meeks,
789 So.2d 982, 986 (Fla.2001). Upon finding a violation of community control, the court may revoke, modify, or continue it in the court’s discretion. §
948.06(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1992 Fla. App. LEXIS 7475, 1992 WL 157437
...The prosecutor did not, however, enumerate these offenses nor did he produce any further evidence to support his assertion. The reason for departure is invalid for two reasons. First, the reason did not exist at the time of the initial sentencing. Section 948.06(1), Florida Statute (Supp....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 10384, 2011 WL 2581768
...urt made no finding (and the evidence was lacking) that Appellant willfully failed to pay. Limbaugh v. State,
16 So.3d 954 (Fla. 5th DCA 2009). On remand, the trial court should reinstate the probation or *756 impose non-prison sanctions pursuant to section
948.06(5), Florida Statutes (2010)....
CopyPublished | Florida 4th District Court of Appeal
...KLINGENSMITH, J.
Appellant Gregory Stickney appeals his sentence for violating his
probation. Stickney raises several issues on appeal, but we find merit in
only two. First, the trial court erred by failing to file written findings
pursuant to section 948.06(8)(e)1., Florida Statutes (2017), to support its
determination that Appellant posed a danger to the community as a violent
felony offender of special concern (“VFOSC”)....
...Whittaker
v. State,
223 So. 3d 270, 272 (Fla. 4th DCA 2017).
On the first issue, both parties agree that the trial court was required
to enter a written order with specific findings to establish that Appellant is
a danger to the community. See §
948.06(8)(e)1., Fla....
...The point of contention
is whether the trial court must hold a new hearing.
In Arnone v. State,
204 So. 3d 556 (Fla. 4th DCA 2016), this court held:
[W]here a court orally pronounces a reason, consistent with
one or more of the factors listed under section
948.06(8)(e)1,
for its finding that the defendant, as a violent felony offender
of special concern, poses a danger to the community, but fails
to provide written reasons for its finding, the proper remedy is
to affirm...
...oral pronouncement. Martin v. State,
87 So. 3d 813, 813 (Fla.
2d DCA 2012); Bell v. State,
150 So. 3d 1214, 1214 (Fla. 5th
DCA 2014).
Id. at 557.
Here, the trial court orally pronounced reasons consistent with one or
more factors under section
948.06(8)(e)1....
...failed to memorialize them in the revocation order.
Therefore, we affirm Appellant’s designation as a VFOSC, but remand
for the trial court to enter a proper written order conforming to his oral
pronouncement without a new sentencing hearing. See § 948.06(8)(e)1.,
Fla....
CopyPublished | Florida 5th District Court of Appeal | 2006 WL 26169
...The document alleging violation of probation was signed below the following statement: Under penalties of perjury, I have read the foregoing affidavit and the facts stated in it are true. This document was "verified," [1] but did not meet the "affidavit" requirement of section 948.06(1), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2009 WL 18709
...pany to transport; obtain the restraining devices mentioned above; and bolt a metal plate to the floor. The court made it clear it was not directing the Department which was the best solution, but merely pointed out suggestions. The judge found that section 948.06, Florida Statutes, which provides that probation officers "may" arrest or request local law enforcement to arrest offenders without warrant, does not excuse the department from arresting and transporting if the local law enforcement ag...
...ing process delegated to state agency), rev. denied,
932 So.2d 193 (Fla.2006). The orders in question interfere with the discretion which the legislature granted to the probation supervisors, as well as with funding decisions made by the department. Section
948.06 gives probation officers discretion "may arrest" (emphasis added) whether to effect a warrantless arrest of a violator....
...r probation supervisor may arrest or request any county or municipal law enforcement officer to arrest such *1192 probationer or offender without warrant wherever found and return him or her to the court granting such probation or community control. § 948.06(1)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 589, 1992 WL 13830
...criminal conduct, and resistance to rehabilitation. The sole issue on appeal is whether the trial court erred by imposing a departure sentence for these reasons. In Williams v. State,
581 So.2d 144 (Fla.1991), the supreme court observed that, under section
948.06(1), Florida Statutes (1987), when sentencing a defendant after violation of probation, a “court is authorized to impose any sentence that it might have originally imposed before placing a defendant on probation.”
581 So.2d at 146 (emphasis added)....
CopyPublished | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 779, 2004 WL 177059
...Johnson’s probation, we agree that an upward departure sentence was improperly imposed. Mr. Johnson was originally placed on probation for crimes committed in 1997, and was subject to the sentencing guidelines in place before the enactment of the Criminal Punishment Code. 1 Section 948.06(1), Florida Statutes (1997) states that if a charge is not admitted by the probationer or offender, and if the violation of probation is not dismissed, the court as soon as possible shall give the probationer or offender an opportunity to be fully heard....
...have, but which had not yet resulted in a criminal conviction. An upward departure under these circumstances is improper. See State v. Varner,
616 So.2d 988 (Fla.1993). AFFIRMED in part, REVERSED in part. Remanded for resentencing in conformity with section
948.06(1), Florida Statutes (1997)....
CopyPublished | Florida 2nd District Court of Appeal
...1996))).
Challenge to Criminal Punishment Scoresheet
5
In Ground 10, Glaubius argues that his scoresheet erroneously
includes twenty-four points for a new felony conviction by a "violent
felony offender of special concern" under section 948.06(8)(c), Florida
Statutes (2021)....
CopyPublished | Florida 1st District Court of Appeal
...Weekly D1524 (Fla. 1st
DCA Aug. 2, 2023). We reverse, however, as to Appellant’s second
argument. As the State’s brief concedes, trial courts must make
written findings as to whether a violent felony offender of special
concern poses a danger to the community. § 948.06(8)(e), Fla....
CopyPublished | Florida 4th District Court of Appeal
...alleged discovery violation, lack of statutorily required written danger
findings, a scoresheet error, and entitlement to a twelve-person jury. We
affirm Defendant’s convictions and sentences, but remand solely for the
trial court to (1) make the required written findings under section
948.06(8)(e), Florida Statutes (2018), that Defendant, as a violent felony
offender of special concern, poses a danger to the community; and (2) enter
a properly calculated scoresheet by removing the twelve points imposed
for a non-law violation of probation....
CopyPublished | Florida 2nd District Court of Appeal | 2005 Fla. App. LEXIS 658, 2005 WL 176486
...n v. State,
620 So.2d 1126 (Fla. 1st DCA 1993). However, in Green the court recognized that the State must first show that the violation was willful. Id. at 1129 . The Fifth District has explained as follows: Although a plain reading of the statute [section
948.06(5), Florida Statutes (2002)] appears to place the burden of proving ability to pay restitution on the probationer, our courts have held that in order to revoke probation for failure to pay restitution the burden is on the State to prov...
CopyPublished | Florida 4th District Court of Appeal
...legations
and the issue is not properly before this court. Additionally, the state
maintains that this appeal would not entitle Defendant to a new violation
hearing because his admission to condition 2 remains unchallenged and
was not withdrawn.
Section 948.06(2), Florida Statutes (2021), which guides VOP
proceedings, provides in part:
(d) If such charge is not at that time admitted by the
probationer or offender and if it is not dismissed, the court, as
soon as may be pra...
...proven or admitted, unless he or she has previously been
adjudged guilty, and impose any sentence which it might have
6
originally imposed before placing the probationer or offender
on probation or into community control.
§ 948.06(2)(d)–(e), Fla....
...attendant to community control revocation hearings.
....
After [the defendant] admitted to violating community
control, the trial court had to consider whether to revoke,
modify, or continue community control. See § 948.06(1)[, Fla.
Stat]....
...defendant’s conduct on probation through evidence (i.e., substantiated
facts)—would undermine the well-settled law that one violation, even a
single technical violation, is sufficient to revoke probation and sentence
anywhere in the guidelines. See § 948.06(2), Fla....
CopyPublished | Florida 5th District Court of Appeal
posed a danger to the community pursuant to section
948.06(8)(e), Florida Statutes (2016). See Wells v
CopyPublished | Florida 5th District Court of Appeal
posed a danger to the community pursuant to section
948.06(8)(e), Florida Statutes (2016). See Wells v
CopyPublished | Florida 5th District Court of Appeal
...January 2017. At sentencing, defense counsel
conceded that Appellant qualified as a violent felony offender of special concern, and the
trial court made the oral pronouncement that Appellant’s release posed a danger to the
community pursuant to section 948.06(8)(e), Florida Statutes (2016).
On appeal, Appellant argues (1) the finding that he violated his probation was not
supported by competent, substantial evidence, and (2) the trial court erred by failing to
include its reasons...
...community to writing. See Bell v. State,
150 So. 3d 1214 (Fla. 5th DCA 2014); see also
Arnone v. State,
204 So. 3d 556, 557 (Fla. 4th DCA 2016) (“[W]here a court orally
pronounces a reason, consistent with one or more of the factors listed under section
948.06(8)(e)1., for its finding that the defendant, as a violent felony offender of special
concern, poses a danger to the community, but fails to provide written reasons for its
finding, the proper remedy is to affirm the revocation of th...
CopyPublished | Supreme Court of Florida
...ved on case/count . (Offenses
committed between October 1, 1989, and December 31, 1993.)
. The Court deems the unforfeited gain time previously awarded on the above
case/count forfeited under section 948.06(7), Florida Statutes.
....
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 268, 2010 WL 173562
...The only case which is before us on this appeal is Miami-Dade County circuit court case number 08-16805. The defendant was not sentenced as a habitual violent felony offender in that case. The defendant’s complaint about the length of his sentence is without merit. See § 948.06(2)(e), Fla....
CopyPublished | Florida 5th District Court of Appeal
...volving prison incarceration is subject to a revocation proceeding held by the trial court for misconduct occurring during the community control portion of the offender's split sentence. Our holding was based on the provisions of sections
958.14 and
948.06(1), Florida Statutes (1983). Those provisions read as follows:
958.14 Violation of community control program. A violation or alleged violation of the terms of a community control program shall subject the youthful offender to the provisions of s.
948.06(1).
948.06 Violation of probation or community control; revocation; modification; continuance....
...t revoke the release. But section
958.14, which is subsequent in location in the statutes to section 958.10, [2] explicitly states that a youthful offender who violates the terms of his community control release shall be subject to the provisions of section
948.06(1) which explicitly authorizes the court which granted the community control release to revoke it and then to "impose any sentence which it might have originally imposed......
...a period of imprisonment. Such an offender, under Lollis, is solely under the supervisory authority of the Parole and Probation Commission, and his release to community control cannot be revoked by the trial court. On their face, sections
958.14 and
948.06(1) make no distinction between those youthful offenders serving in a community control program after imprisonment and those who enter community control directly. Given the explicit and unambiguous language of sections
958.14 and
948.06(1), we adhere to our holding in Spurlock to the effect that a youthful offender released to community control following a sentence of imprisonment is subject to the supervisory authority of the trial court, and the latter has the power to revoke his release....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 15453
870 (Fla. 4th DCA 1978), this court, citing Section
948.06(1), Florida Statutes (1975), held that upon
CopyPublished | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 15608
...gain placed him on probation for a period of four years, on condition that he serve nine months in the county jail. Appellant contends this amounted to an extension of the original term of his probation, and that such an extension is unauthorized by section 948.06(1), Florida Statutes (1977)....
CopyPublished | Florida 2nd District Court of Appeal
...ublic by deterring further criminal conduct, and to protect the crime victim’s rights. See Woodson v. State,
864 So.2d 512, 516 (Fla. 5th DCA 2004). A violation of probation generally results in some form of additional punishment for the offender. §
948.06, Fla....
CopyPublished | District Court of Appeal of Florida | 2004 Fla. App. LEXIS 175, 2004 WL 57378
...ding rule that a court is divested of jurisdiction upon expiration of the probationary period. None of Seitz’ four consecutive probationary periods had expired prior to the process of revocation having been set in motion. Seitz further argues that section 948.06, Florida Statutes requires that probation violations must have occurred “within the period of probation” for revocation to be available....
CopyPublished | Florida 3rd District Court of Appeal
...absence might frustrate the fairness of
the proceedings.” Id.; see e.g., Doe v. State,
217 So. 3d 1020, 1026 (Fla. 2017)
(holding that: “The right to be present at an involuntary commitment hearing is a
fundamental due process right.”).
3
See §
948.06(2)(d), Fla....
CopyPublished | Florida 5th District Court of Appeal
...ful offender’s violation of
probation or community control:
A violation or alleged violation of probation or the terms of a
community control program shall subject the youthful offender
to the provisions of s. 948.06....
...substantive violation for a period longer than the maximum
sentence for the offense for which he or she was found guilty
....
(Emphasis added). Section
958.14 dictates that violations are subject to the provisions of
section
948.06, which provides, in relevant part:
If probation or community control is revoked, the court shall
adjudge the probationer or offender guilty of the offense
charged and proven or admitted, unless he or she has
previously been adjudicated guilty, and impose any sentence
which it might have originally imposed before placing the
probationer on probation or the offender into community
control.
§
948.06(2)(b), Fla....
...AS A
YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER
REVOKES SUPERVISION FOR A SUBSTANTIVE
VIOLATION AND IMPOSES A SENTENCE ABOVE THE
YOUTHFUL OFFENDER CAP UNDER SECTIONS
958.14
AND
948.06(2), FLORIDA STATUTES, IS THE COURT
REQUIRED TO IMPOSE A MINIMUM MANDATORY
SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED
TO THE OFFENSE?
The Florida Supreme Court accepted jurisdiction, Eustache v....
...fter revocation of probation or
community control was answered in dicta. However, we adhere to the analysis in
Christian, which involved a question of statutory construction at its heart. The sentencing
options for youthful offenders are limited. Section
948.06 does not, on its face, alter the
sentence that the court “might have originally imposed” on a youthful offender. When read
together, sections
958.04,
948.06, and
958.14 permit the trial court to sentence a youthful
4
offender who substantively violates probation or community control to a prison sentence
in excess of 6 years but do not allow the cou...
CopyPublished | Florida 4th District Court of Appeal
...and the aggravated stalking convictions. Accordingly, Defendant is solely
entitled to a remand to correct his scoresheet. See Naugle v. State,
244
So. 3d 1127, 1128 (Fla. 4th DCA 2018).
Defendant next argues the trial court erred when it failed to make a
written finding under section
948.06(8)(e), Florida Statutes (2022), that he
was a danger to the community....
...State,
204 So. 3d 556, 557 (Fla. 4th DCA 2016).
However, Defendant is not entitled to resentencing. Resentencing is
not required where the trial court orally pronounces a reason that is
consistent with one or more of the factors it must consider under section
948.06(8)(e)1....
...One of those factors is “[t]he offender’s amenability to
nonincarcerative sanctions based on his or her history and conduct during
the probation or community control supervision from which the violation
3
hearing arises and any other previous supervisions.” § 948.06(8)(e)1.c.,
Fla....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 102, 22 Fla. L. Weekly Fed. D 171
otherwise available under Green, pursuant to section
948.06(6), Florida Statutes (1989) and section 944
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 22405
PER CURIAM. Affirmed. See: Section 948.06(1), Florida Statutes (1973).
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 1434, 2011 WL 362235
...“Instead, once the court revokes probation or community control, the court resentences the offender on the original charge, and may ‘impose any sen *574 tence which it might have originally imposed before placing the probationer or offender on probation or into community control.’ ” Cozza,
756 So.2d at 273 (quoting §
948.06(1), Fla. Stat. (1995), now codified at §
948.06(2)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 6151
...nt and two other persons testified before the court. We, therefore, find his claim for reversal is without merit. See McNeely v. State of Florida, Fla.App.1966,
186 So.2d 520 ; Roberts v. State of Florida, Fla.App.1963,
154 So.2d 695 ; and Fla.Stat. §
948.06, F.S.A....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 19161
...Its failure to do so resulted in the denial of the appellant’s right to effective assistance of counsel. The trial court’s error was not made harmless by appointing the public defender to represent the appellant. He had the right to be represented by his own attorney. § 948.06, Fla.Stat....
CopyPublished | Florida 5th District Court of Appeal | 2014 WL 854103, 2014 Fla. App. LEXIS 3414
...The probation condition requiring drug treatment was not imposed in the original sentence. The State concedes error because Appellant’s due process rights were violated. He did not receive a properly noticed hearing regarding the added condition of probation. § 948.06, Fla....
CopyPublished | Florida 4th District Court of Appeal
...3d 1090, 1092 (Fla. 4th DCA 2015).
The defendant continues to make the same arguments on appeal: (1)
the scoresheet improperly contained twelve points for his designation as a
VFOSC; and (2) the trial court failed to comply with the statutory
requirements of section 948.06(8), Florida Statutes (2015). He further
argues he is entitled to a new sentencing hearing in which the court
considers the statutory factors in determining whether he poses a danger
to the community and makes the required written finding.
Section 948.06(8) provides:
(b) For purposes of this section ....
...If the court has found that a violent felony offender of
special concern 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 this section.
§ 948.06(8), Fla....
...The court sentenced the
defendant to forty-nine months in prison. Id. The disposition order
indicated the defendant was not a danger and that his probation was
revoked. Id. However, it did not indicate that the court had considered
any of the factors in section 948.06(8)(e)....
...And, the court did not enter
a written order specifying the conditions violated. Id. The defendant filed
two Rule 3.800(b)(2) motions to correct sentencing errors, which were
denied. Id.
On appeal, Whittaker argued the trial court failed to comply with
section 948.06(8)....
...ther
the defendant posed a danger to the community and failed to specify which
conditions had been violated. Id. at 275-76. The remedy: reverse and
remand for another sentencing hearing to allow the court to make the
necessary written findings under section 948.06(8)(e). Id. at 276.
Here, as in Whittaker, the defendant qualified as a violent felony
offender of special concern under section 948.06(8)(b)3 because he was on
felony probation and violated probation by committing the qualifying
offense of transmission of child pornography....
CopyPublished | Florida 3rd District Court of Appeal
for the conduct constituting the violation.”); §
948.06(2)(b), Fla. Stat. Here, the record establishes
CopyPublished | Florida 1st District Court of Appeal
...falling within the generally established range between the lowest
permissible sentence and the statutory maximum.
It is true that the trial court may “impose any sentence which
it might have originally imposed before placing the probationer on
probation.” § 948.06(2)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 2267, 2011 WL 637296
...analogized the violations of juvenile probation in that case to a revocation of probation proceeding in a criminal case. However, the proceeding in an alleged violation of criminal probation is generally initiated by the filing of an affidavit of violation of probation. See § 948.06(l)(d), Fla....
CopyPublished | Florida 2nd District Court of Appeal
PER CURIAM. Affirmed. See §
948.06(8)(b)(1), (c)(3), Fla. Stat. (2015) ; Jeffers v. State,
106 So. 3d
CopyPublished | Florida 2nd District Court of Appeal
...Appellee. )
___________________________________)
Opinion filed February 21, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court
for Hardee County; Marcus J. Ezelle,
Judge.
PER CURIAM.
Affirmed. See § 948.06(8)(b)(1), (c)(3), Fla....
CopyPublished | Supreme Court of Florida
...ved on case/count . (Offenses
committed between October 1, 1989, and December 31, 1993.)
. The Court deems the unforfeited gain time previously awarded on the above
case/count forfeited under section 948.06(7), Florida Statutes.
....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 1228, 1994 WL 46917
...State,
531 So.2d 161 (Fla.1988). 1 In this particular case, given the nature of the original defect in the sentence, we conclude that upon violation of probation, Tuck became subject to any sentence the court might have originally imposed with the addition of a one-cell bump-up. §
948.06, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal
...occupied dwelling, he qualified as
1
Although the trial court withheld adjudication of guilt when placing Gutierrez
on probation for the second-degree burglary, this nevertheless qualified him
as a violent felony offender of special concern. See § 948.06(8)(a), Fla....
...means a determination of guilt which is the result of a trial or the entry of a
plea of guilty or nolo contendere, regardless of whether adjudication is
withheld.”)
2
a “violent felony offender of special concern” under section 948.06(8)(b)-(c),
Florida Statutes (2019), triggering additional mandatory procedures....
...probation: Gutierrez would admit to all five allegations in the amended
probation violation affidavit; the court would modify Gutierrez’s probation by
adding six months’ community control with a GPS monitor, followed by an
2
For example, pursuant to section 948.06(8)(d)-(e), the following mandatory
requirements apply to violent felony offenders of special concern:
- If the alleged violation of probation is for something other than a failure
to pay costs, fines, or restitution, a viole...
...the absence of an agreement by the parties, a waiver by the State, or a
legally sufficient motion—the trial court did not have the authority to sua
sponte dismiss the affidavit of violation of probation without first conducting
a probation violation hearing. See § 948.06(8)(d) (providing that if the
probationer qualifies as a violent felony offender of special concern, the trial
court “shall not dismiss the probation or community control violation warrant
pending against an offender enumerated in this...
...Further, Rincon held, such a formal hearing is
required for the trial court’s subsequent determination and written findings
(should the trial court find defendant in violation of his probation) as to
whether a defendant poses a danger to the community, required under
section 948.06(8)(e)....
...Importantly, however, if the defendant admits to the
allegations contained in the amended affidavit (which alleges more than a
failure to pay costs, fines, or restitution), the trial court must, before revoking,
modifying or continuing probation, first hold a hearing pursuant to section
948.06(8)(e), to determine and make written findings whether the defendant
poses a danger to the community.
Reversed and remanded with directions.
7
CopyPublished | Florida 4th District Court of Appeal | 1993 Fla. App. LEXIS 1652, 1993 WL 32451
...tion to the Department of Corrections: “In imposing the above sentence the court further recommends forfeit [sic] good and gain time received on initial sentence [sic] to be given time served for only actual time served.” The state concedes that section 948.06(6), Florida Statutes (1989), is not applicable to this case since Stevenson’s crime and sentencing predate the enactment of the statute....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 19139
revocation proceeding were not met in this case. § 948.-06, Fla.Stat. Also, compare Gagnon v. Scarpelli,
CopyPublished | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 1637, 2006 WL 304564
...Any subsequent probationary sentence cannot exceed the maximum penalty allowable under section
775.082, Florida Statutes (2003), when combined with any amount' of time served on the preceding terms of probation or community control. Cregan,
908 So.2d at 390 ; §
948.06(3), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Even if
we determined that finding was in error, the trial court’s unchallenged
finding that the defendant violated his probation by committing the new
law offense of criminal mischief required the revocation of his probation
pursuant to the sentencing provisions of the VFOSC statute. See §
948.06(8)(e)1., 2.a., Fla....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 12635, 1995 WL 723553
...ONMENT ALREADY SERVED AND TO BE SERVED DOES NOT EXCEED THE STATUTORY MAXIMUM FOR A SINGLE OFFENSE? The case is remanded with directions for the trial court to credit the appellant properly for time previously served and to impose any legal sentence. § 948.06(1), Fla.Stat.; Eanes v....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 19214, 2007 WL 4245540
PER CURIAM. The order revoking defendant’s probation is affirmed. The charges of violation were initially filed before the probationary term had expired. See § 948.06(1)(d) (filing of warrant alleging violation of probation tolls term of probation until disposition of VOP charges)....
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 7452
...hat the trial court could not have given him a greater sentence on these convictions than those originally given. See: North Carolina v. Pearce,
395 U.S. 711 ,
89 S.Ct. 2072 ,
23 L.Ed.2d 656 . We find no merit in this contention because our statute [§
948.06, Fla.Stat.] grants unto a trial judge the power [upon a revocation of probation] to give any sentence that he might have originally imposed....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15685
...It is clear that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the process of the court has been set in motion for revocation or modification of the probation pursuant to Section 948.06, Florida Statutes (1963)....
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 19816, 2010 WL 5348731
...curred on April 19, 1991. The sole issue on appeal concerns the alleged invalidity, under the ex post facto doctrine discussed in Calder v. Bull,
3 U.S. 386, 3 Dall. 386,
1 L.Ed. 648 (1798), of the 2001 amendment to the "tolling" statute, Fla. Stat. §
948.06(1)(d), pursuant to which the trial court retained and asserted jurisdiction over the proceeding....
...Subsequent to the filing of the brief of appellant, the Supreme Court decided the controlling case of Shenfeld v. State,
44 So.3d 96 (Fla.2010), which rejected the identical claim, based there on the alleged affect of the 2007 amendment to Fla. Stat. §
948.06(1)(d)....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 17448, 2000 WL 1880145
...dates needless repetition. In effect, the case law appears to state that an initial determination concerning defendant’s qualification for habitualization is of no significance if it is not restated in the sentence. The general rule as provided in section 948.06(1), Florida Statutes, should apply: When a person violates probation, the court may “impose any sentence which it might have originally imposed before placing the probationer or offender on probation or into community control.” A p...
CopyPublished | Florida 1st District Court of Appeal
2016), in which the Fourth District explained: Section
948.06(1)(f) is clear that a warrant under section
CopyPublished | District Court of Appeal of Florida
in which the Fourth District explained: Section
948.06(1)(f) is clear that a warrant under section
CopyPublished | Florida 2nd District Court of Appeal | 1991 WL 279434
original probation was imposed. Williams relied on section
948.06(1), which provides that upon revocation, the
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 13380, 1996 WL 734826
...re probation terms. The court believed that the defendant was amenable to continued therapy and treatment. The court determined that it lacked such discretion, and revoked defendant’s probation, urging defense counsel to seek review in this court. Section 948.06(3), Florida Statutes (1991), provides that “[u]pon the probationer or offender being brought before it, the court which granted the probation or community control may revoke, modify, or continue the probation or community control.”...
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 13196, 1995 WL 755567
...ution hearing regarding an inability to pay. Massie,
635 So.2d at 111 ; Blasco v. State,
601 So.2d 1264 (Fla. 3d DCA 1992). The appellant may, however, defend against any subsequent enforcement proceeding based on his financial inability to pay. See §
948.06(4), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 19090, 2015 WL 9598283
...ION MARSTILLER, J. We grant Appellant’s motion for clarification, withdraw our previously-issued opinion and substitute the following revised opinion. Appellant Brian Williamson was found in violation of probation, and the trial court, pursuant to section 948.06(8), Florida Statutes, designated him a violent felony offender of special concern who poses a danger to the community. Williamson challenges the designation and resulting sentence, arguing that the court incorrectly relied on a qualifying offense — aggravated assault — he committed before section 948.06 was enacted in 2007. Because the plain language of the pertinent statutory provision contains no such limitation, we affirm. 1 *1225 Under section 948.06(8)(b), Florida Statutes (2014), a violent felony offender of special concern is someone on: 1....
...775.21 and has committed a qualifying offense on or after the effective date of this act. (Emphasis added.) 2 Williamson’s designation falls under paragraph (8)(b)2., above, and the qualifying offense he was convicted of in 2004 is aggravated assault. See § 948.06(8)(c)14., Fla....
...The offender in Cherington was on probation for aggravated assault which he had committed in 2005, and did not have a new felony conviction at the time he was being sentenced for violating probation.
24 So.3d at 659, 663 . Thus, he was not on felony probation for any offense committed on or after the 2007 effective date of section
948.06(8), and he had not committed a qualifying offense on or after that date....
...State,
71 So.3d 881, 886 *1226 (Fla.2011) (“When a statute is clear, we do not look behind the statute’s plain language for legislative intent or resort to rules; of statutory construction to ascertain intent”). The trial court correctly designated Williamson a violent felony offender of special concern under section
948.06(8) based on his prior conviction for aggravated assault....
...viewed by an appellate court *1225 de novo. See Jeffers v. State,
106 So.3d 37, 38 (Fla. 2d DCA 2013). . Once it is determined the offender qualifies for the designation, the court then must determine if the offender poses a danger to the community. §
948.06(8)(e), Fla. Stat. If the court concludes the offender does pose a danger, the court is required to revoke probation and sentence the offender “up to the statutory maximum, or longer if permitted by law.” §
948.06(8)(e)2.a„ Fla....
CopyPublished | Florida 2nd District Court of Appeal
...simply run out the clock (or be granted early termination of
probation) without ever having to pay the full amount of
restitution he owes, so long as he appeared to be indigent.
....
The Defendant does not qualify for sentencing pursuant
to section 948.06(2)(f) because that provision of the law
applies to violations for willfully failing to make monthly
restitution payments, which the Defendant had been doing at
the minimum rate of $200 per month....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 13216, 1996 WL 728648
...The appellant argues that the total of this new sentencing scheme, ten years, added to the approximately four years and seven months he has already served on probation and community control, exceeds the statutory maximum of five years. What the appellant fails to recognize is the interplay between Sum mers 2 and sections 948.06(1) and 948.06(2), Florida Statutes (1989)....
...eviously served on probation toward any newly-imposed probationary term for the same offense when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense. Summers,
642 So.2d at 743 (emphasis ours). Section
948.06(2) provides that no part of probation or community control time served may be credited toward a term of incarceration imposed upon revocation of probation or community control. Summers reiterated this concept by specifying that probation time before revocation may not be credited toward the term of incarceration imposed upon revocation. Id. at 743 . Section
948.06(1) provides that if probation or community control is revoked, the sentencing court may impose any sentence it could have originally imposed....
...In Waters , the defendant’s probation was revoked and the trial court imposed a split sentence which, like the appellant’s here, if coupled with the time already served on probation, would exceed the statutory maximum allowed. The supreme court harmonized Summers and subsections (1) and (2) of section 948.06 by adopting the reasoning of Bragg v....
...4th DCA 1995), dealt with the same issue faced in Waters, Bragg, and the instant case, and explained that the defendant’s “attempt to credit time on probation and community control against his post[-]revocation incarceration is dissonant with both Waters *890 and section
948.06(1), (2), Florida Statutes (1993).” Meader,
665 So.2d at 345 ....
CopyPublished | Florida 3rd District Court of Appeal
...afforded a probationer in a violation of probation hearing as compared to those
afforded an accused in a criminal prosecution:
• A probationer has no constitutional right to pretrial release while being held
pending a hearing on an alleged violation of probation (see § 948.06(1)(e)2., Fla.
Stat....
...These principles require the trial court to provide a
defendant with notice of the alleged violation and an opportunity to be
heard prior to revoking probation.
(Citations omitted.)
We note that these due process requirements are found in section 948.06,
Florida Statutes (2020) which provides, inter alia, that the trial court “shall inform
the person of the violation,” and if the probationer does not admit to the violation
“the court, as soon as may be practicable, shall give the probationer or offender an
opportunity to be fully heard on his or her behalf in person or by counsel.” See §§
948.06(1)(e)1.a.,(2)(d).
And as alluded to earlier, the concept of a defendant’s constitutional right to
confront his accuser and to be physically present in the courtroom has historically
been addressed by courts in two contexts:...
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 19201, 2011 WL 6003406
...Siplen was found to have violated his probation in all three cases. The judgments contained the original charge of driving while license suspended as well as an additional count numbered either 3 or 4, entitled “On Site Violation of Probation Felony,” and identified as a third degree felony under section 948.06(1), Florida Statutes....
...Consecutive five-year sentences were imposed in the three violation of probation cases. No sentence was imposed for the “onsite violation of probation felony.” On appeal, Si-plen correctly complains that there is no such offense under Florida law. Section 948.06(1) deals with the power of law enforcement to arrest a probationer without *807 a warrant if there are reasonable grounds to believe that a probationer has violated probation....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 13196
...State,
566 So.2d 299, 301 (Fla. 1st DCA 1990). However, if the reasons for departure existed when the judge initially sentenced the defendant, then the trial court may depart from the presumptive guidelines range and impose a sentence within the statutory limit. Id.; §
948.06(1), Fla.Stat. (1989). Subsection
948.06(1), Florida Statutes (1989), provides that *185 if probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he has previously been adjud...
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 22649
PER CURIAM. Affirmed on the authority of Section 948.06, Florida Statutes....
CopyPublished | Florida 2nd District Court of Appeal | 1997 WL 777944
...probation. See, e.g., Hunt v. State,
685 So.2d 964 (Fla. 3d DCA 1996) (holding that upon finding defendant violated probation, trial court did not have to revoke probation and impose guidelines sentence, absent valid reasons for downward departure; section
948.06(3) also gave trial court discretion to continue or modify probation), review denied,
693 So.2d 33 (Fla.1997)....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 16019
...l court denied him minimal due process when it revoked his probation, as indicated above, without any notice to the probationer or opportunity to address the court. We concur with the appellant, and reverse the order of revocation here under review. § 948.06, Fla.Stat., provides the procedure to be afforded in a revocation proceeding....
CopyPublished | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1916, 1985 Fla. App. LEXIS 15189
...tions of community control are to be addressed by the Department of Corrections. However, if a defendant is charged with violating community control after October 1, 1983, jurisdiction is vested in the circuit court pursuant to the 1983 amendment to section 948.06, Florida Statutes....
CopyPublished | Florida 6th District Court of Appeal
...1
Anders v. California,
386 U.S. 738 (1967). This case was transferred from
the Second District Court of Appeal to this Court on January 1, 2023.
previously adjudicated guilty, the sentencing paperwork reflects a redundant
adjudication. See §
948.06(2)(e), Fla....
CopyPublished | Florida 5th District Court of Appeal
...EDWARDS, C.J.
Appellant, Marc Booker, appeals the trial court’s order
entered on June 26, 2023, revoking his probation and sentencing
him to 15.3 months in state prison as it found Appellant to be a
violent offender of special concern pursuant to section 948.06(8)(e),
Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2013, 1989 Fla. App. LEXIS 4802, 1989 WL 99691
...In Poore , the Florida Supreme Court explained that if a defendant originally receives a true split sentence: the sentencing judge in no instance may order new incarceration that exceeds the remaining balance of the withheld or suspended portion of the original sentence. Section 948.06(1) would not apply in this latter instance because no new fact would be available for consideration by the sentencing judge....
CopyPublished | Florida 3rd District Court of Appeal
... Deymus Ramos Gonzalez appeals the trial court’s order revoking his
probation and sentencing him. We affirm the trial court’s revocation of
probation and sentence. We remand, however, so that the trial court may
render the written statutory findings necessary under section
948.06(8)(e),
Florida Statutes (2021).
Gonzalez was on probation in six separate cases for various charges,
including armed home invasion robbery under section
812.135, Florida
Statutes, and aggravated stalking under section
784.048(4), Florida
Statutes. Each of these are qualifying offenses under sections
948.06(8)(c)(6) & (8)(c)(15), Florida Statutes, which rendered Gonzalez a
violent felony offender of special concern under section
948.06(8)(b), Florida
Statutes. At his sentencing for violation of probation, the trial court orally
pronounced Gonzalez to be a danger to the community but did not reduce
its findings to writing.
Section
948.06(8)(e)(1), Florida Statutes, requires that the trial court
make written findings articulating whether a violent felony offender of special
concern poses a danger to the community. The trial court here did not make
the mandatory written findings as to whether Gonzalez posed a danger to
the community as required by section
948.06(8)(e)(1)....
... that Gonzalez posed a danger to the community. See Saladriga v. State,
291
So. 3d 998 (Fla. 3d DCA 2020); McCray v. State,
282 So. 3d 158 (Fla. 2d
DCA 2019). See also McCray v. State,
283 So. 3d 406, 408 (Fla. 3d DCA
2019) (“The written findings requirement of section
948.06(8)(e) is
mandatory, not discretionary.”).
Affirmed; remanded with instructions.
3
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 3642020, 2017 Fla. App. LEXIS 12109
...Following
careful consideration, we affirm the revocation and sentence. However, we remand for
entry of a supplemental order.
Appellant was assessed 48 points on his scoresheet for prior violations of
community control and probation as a violent felony offender of special concern. “Section
948.06(8)(e)1, Florida Statutes, requires that a trial court make written findings regarding
whether a violent felony offender of special concern poses a danger to the community.”
Glenn v....
...not make any written findings. However, the court orally referenced reasons that would
support such a finding under the statute.
[W]here a court orally pronounces a reason, consistent
with one or more of the factors listed under section
948.06(8)(e)1, for its finding that the defendant, as a violent
felony offender of special concern, poses a danger to the
community, but fails to provide written reasons for its finding,...
CopyPublished | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 431, 1995 Fla. LEXIS 1389
...tencing judge departed downward from the guideline range and sentenced Lamar to 10 years probation. According to Lamar, the downward departure was arrived at through a negotiated plea. . In Stafford , Justice Kogan's dissenting opinion reasoned that section 948.06, Florida Statutes (1987), requires that when a person violates probation due to the commission of a new substantive offense, and both the violation of probation and the criminal offense that resulted in the violation are before the sen...
CopyPublished | Florida 5th District Court of Appeal
...The State correctly concedes error on the limited
basis that the trial court failed to make findings as to whether
Brock, as a violent felony offender of special concern, posed a
danger to the community when imposing Brock’s sentence of
thirty-six months in prison. See § 948.06(8)(e), Fla....
...1 Typically, upon making a finding that a violent felony
offender of special concern poses a danger to the community, the
trial court would be required to revoke that defendant’s probation
and sentence him or her up to, or beyond, the statutory maximum,
as permitted by law. See § 948.06(8)(e)2.a....
CopyPublished | Florida 3rd District Court of Appeal
...The argument that the circuit court
lost jurisdiction to enforce its probation orders based on the amendment to
section
812.014 conflicts with the statutes expressly granting the court that
5
enters an order of probation the jurisdiction to enforce its order. See §
948.06(1)(a), Fla....
...(2019) (“Whenever within the period of probation . . .
there are reasonable grounds to believe that a probationer . . . has violated
his or her probation . . . any probation officer may arrest . . . such probationer
. . . and return him or her to the court granting such probation[.]”); §
948.06(2)(b), Fla....
CopyPublished | Florida 1st District Court of Appeal
...9.330 or
9.331.
_____________________________
TANENBAUM, J., concurring.
Though not raised by Harris in this appeal, the record reveals
a potentially illegal sentence, one imposed by the trial court after
improperly revoking his probation. Section 948.06(2)(f)1., Florida
Statutes, requires (except in limited circumstances not applicable
here) the trial court to “modify or continue a probationary term” if
all the following apply:
a....
...A probationer who has successfully
completed sanctions through the alternative sanctioning
program is eligible for mandatory modification or
continuation of his or her probation.
“Failure to report a change in address or other required
information” is a “low-risk technical violation[].” § 948.06(9)(b)3.,
Fla....
...condition three. It seems to me the violation was a low-risk one
under the statutory definition, yet the trial court revoked Harris’s
probation, imposing a five-year prison sentence rather than
“modify[ing] or continu[ing]” the probation as required by section
948.06(2)(f)1.
2
Despite the apparent impropriety of the trial court’s
revocation order and the ostensibly unauthorized prison sentence
imposed as a result, there is nothing we can do in this direct appeal
because Harris did not properly raise the issue....
CopyPublished | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 8949, 1992 WL 197865
...ears imprisonment with credit for 404 days time served. Appellant argues that the trial court erred in denying him jail time credit, pursuant to section
921.161(1), Florida Statutes (1991), for his time spent on probation. We reject this contention. §
948.06(2), Fla....
CopyPublished | Florida 1st District Court of Appeal | 1995 Fla. App. LEXIS 8714, 1995 WL 490637
...One order simply states “Order to reflect credit for time served.” The other order denied Curry’s motion to correct sentence and provided that any gain time not credited would be forfeited. We reverse. October 1, 1989 was the effective date of the amendment to section 948.06, Florida Statutes (1993) which allows forfeiture of gain time following a violation of probation. See § 948.06(6), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 12957, 2011 WL 3586220
...State,
993 So.2d 1107 (Fla. 4th DCA 2008). Appellant cannot seek discretionary jail credit in a Rule 3.800(a) motion. See Gomez v. State,
984 So.2d 577 (Fla. 4th DCA 2008). Appellant's claim seeking credit for time spent on community control is without merit. See §
948.06(3), Fla....
CopyPublished | District Court of Appeal of Florida
felony offender of special concern pursuant to section
948.06(8)(b)1,1 Florida Statutes (2020), and that
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 8078, 1991 WL 158158
...State,
579 So.2d 109 (Fla.1991), before probation may be enhanced by an extension of the period, a violation of probation must be formally charged and the probationer brought before the court and advised of the charge in accordance with the procedures of §
948.06, Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 12737, 2011 WL 3558204
...Johnson testified that he had not made many restitution payments because he was barely surviving on his monthly salary. Mr. Johnson's probation officer testified that Mr. Johnson had not made any restitution payments, but did not testify regarding his ability to do so. While section 948.06(5), Florida Statutes (2007), provides that once the state establishes a probationer's failure to pay restitution, "it is incumbent upon the probationer or offender to prove by clear and convincing evidence that he or she does not have the present resources" to do so, this court has held this statute "does not ......
CopyPublished | Florida 2nd District Court of Appeal | 2008 WL 3539967
...Nevertheless, the circuit court found that the term of Ms. Hill's supervision had been tolled. The circuit court reasoned that giving Ms. Hill credit for the tolled time against her term of supervision after finding her insane was contrary to the intent of section 948.06, Florida Statutes (2001). In a written order modifying the terms of Ms. Hill's community control and restoring her to supervision, the circuit court set July 28, 2009, as the new date for the termination of Ms. Hill's supervision. DISCUSSION Based on its interpretation of section 948.06, the circuit court refused to grant Ms. Hill credit for all tolled time against her term of supervision after it dismissed the affidavit of violation of community control. On appeal, Ms. Hill argues that section 948.06 required the circuit court to credit her for all tolled time after it dismissed the affidavit. Because Ms. Hill challenges only the circuit court's interpretation of section 948.06, our review of the circuit court's order is de novo....
...Weekly S481, ___ So.2d ___,
2008 WL 2678449 (Fla. July 10, 2008). Ordinarily, [u]pon the filing of an affidavit alleging a violation of ... community control and following issuance of a warrant... the probationary period is tolled until the court enters a ruling on the violation.
948.06(1)....
...olled time after dismissing the affidavit); Stambaugh v. State,
891 So.2d 1136, 1139 (Fla. 4th DCA 2005) (holding that a defendant shall receive credit for all tolled time after the State dismisses or withdraws a violation of probation charge). Thus section
948.06 nullifies the tolling mechanism when the court dismisses the affidavit. Stambaugh,
891 So.2d at 1139. Here, the finding that Ms. Hill was insane when she committed the alleged violations did not trump the statutory requirement concerning the effect of the affidavit's dismissal. CONCLUSION Section
948.06 required that the circuit court credit Ms....
CopyPublished | Florida 4th District Court of Appeal
...Melear, Senior
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Steven Kaiser appeals a final judgment revoking his probation. He argues the
circuit court committed reversible error by sentencing him to a term of
imprisonment, rather than modifying or continuing his probation in accordance
with section 948.06(2)(f)1.c., Florida Statutes (2019)....
...or narcotic not prescribed by a physician, to-wit: Methamphetamine.” He does
not challenge his plea. Only the ramifications.
Kaiser argues the court was required to modify or continue his probation
instead of revoking it because, he argues, he satisfied all four conditions of
section 948.06(2)(f)1., Florida Statutes (2019). 1 He argues his probation was
revoked for what the statute defines as a low-risk violation. Specifically, a
“positive drug or alcohol test result.” § 948.06(9)(b)1., Fla....
...(2019).
But Kaiser’s probation was not revoked for a “positive drug or alcohol test
result.” Id. (emphasis added). While a test result led to the filing of the violation
of probation affidavit, it is the guilty plea to the two violations, including that he
possessed and smoked methamphetamine, that makes section 948.06(2)(f)1.
unavailable to him.
Affirmed.
KUNTZ and ARTAU, JJ., concur.
GROSS, J., dissents with opinion.
GROSS, J., dissenting.
To reach its conclusion, the majority has ignored the plain language of a
statute and violated basic rules of statutory construction....
...As a result, the
legislative intent—to conserve tax dollars by requiring non-incarcerative
sentencing options—has been frustrated.
The proper result in this case is to reverse, holding that the trial court erred
in sentencing appellant to prison, rather than modifying or continuing his
probation as required by section 948.06(2)(f), Florida Statutes (2019).
Originally, Steven Kaiser was charged with one count of giving false
information to a pawnbroker and one count of dealing in stolen property....
...d by two years of
probation on each count, to be served concurrently. The trial court adjudicated
Kaiser guilty of both charges, and sentenced him in accordance with the
1 Kaiser accepts that he was required to satisfy all of the four elements of section
948.06(2)(f)1. He does so based on Owens v. State,
303 So. 3d 993 (Fla. 1st DCA 2020).
Owens held that section
948.06(2)(f)1....
...supervision.”
In October 2020, Kaiser admitted to the violation of probation as part of an
open plea.
After the trial court accepted Kaiser’s plea, his attorney argued that he
“qualifies for a mandatory modification of probation under 948.06(2).”
The trial court found that the allegations of the Report supported a new law
violation, and commented that he and other judges do not like when their
discretion is taken away by mandatory sentencing statutes. The State urged the
court to sentence Kaiser to 12 years in prison; the judge imposed a sentence of
60 months in prison.
Kaiser argues that the trial court erred in refusing to sentence him pursuant
to the mandatory provision contained in section 948.06(2)(f), Florida Statutes
(2019).
Section 948.06(2)(f) states:
(f) 1....
...affidavit during the current term of supervision. A probationer who
has successfully completed sanctions through the alternative
sanctioning program is eligible for mandatory modification or
continuation of his or her probation.
§
948.06(2)(f), Fla. Stat. (2019). The statute became effective on October 1, 2019.
See Bradley v. State,
303 So. 3d 1018, 1018 (Fla. 1st DCA 2020).
To define a “low-risk technical violation,” section
948.06(2)(f)1.c. adopts the
definition of “low-risk violation” in subsection
948.06(9)(b), Florida Statutes
(2019), which states in pertinent part:
(b) As used in this subsection, the term “low-risk violation,” when
committed by a probationer, means any of the following:
1. A positive drug or alcohol test result.
***
§
948.06(9)(b)1., Fla....
...Associating with a person engaged in criminal activity.
11. Any other violation as determined by administrative order of the chief
judge of the circuit.
4
Case law has massaged the language of section 948.06(2)(f).
First, the statute uses the phrase “when any of the following applies” before
the list of four conditions in subsections a....
...(emphasis added).
This suggests that the statute’s mandatory sentencing provisions would apply
when any one of the a. through d. subsections applied.
However, applying the absurdity doctrine, the First District has held that a
probationer must meet all four requirements to qualify for sentencing under
section
948.06(2)(f), reasoning that “it seems clear that the Legislature intended
section
948.06(2)(f) 1[.] [to] apply only to persons who meet all four conditions.”
Owens v. State,
303 So. 3d 993, 998 (Fla. 1st DCA 2020). The Fifth District
came to the same conclusion in Kirk v. State,
303 So. 3d 604, 606 (Fla. 5th DCA
2020). The courts found that if “any” did not mean “all” in section
948.06(2)(f),
then the conditions listed in subsection b....
...is that the probationer is on probation, and
“anyone found to have violated probation must, of course, be on probation.”
Owens,
303 So. 3d at 997; Kirk,
303 So. 3d at 606. 3
Additionally, the First District has held “that the plain language of
948.06(2)(f)1.c....
...a single violation of probation.” Schmidt v. State,
310 So. 3d 135, 137 (Fla. 1st
DCA 2020) (emphasis added). The court in Schmidt found that, because the
legislature used the language, “[t]he violation is a low-risk technical violation, as
defined in paragraph (9)(b)” in section
948.06(2)(f)1.c., the legislature
unambiguously intended the statute to apply only when there is a single low-
risk violation. Id. at 136–37.
Kaiser does not challenge either of these interpretations of the statute; he
accepts that he must meet all four requirements of section
948.06(2)(f)1., and
that there can be only one low-risk violation. On the other hand, the State does
not dispute that Kaiser met three of the four requirements.
The central issue on appeal is whether Kaiser met the requirement of
subsection
948.06(2)(f)1.c.: “The violation is a low-risk technical violation, as
defined in paragraph (9)(b).” §
948.06(2)(f)1.c., Fla. Stat. (2019).
The statute defines a low-risk technical violation as “[a] positive drug . . . test
result.” §
948.06(9)(b)1., Fla. Stat. (2019). Here, the violation that triggered the
violation of probation proceeding was a positive drug test. Almost every positive
drug test arises from the possession of an illegal drug. To split a positive drug
§
948.06(9)(b), Fla....
...HB 661, § 1 (2021).
5
test into two violations—the failed drug test and illegal possession of a controlled
substance—would always preclude a positive drug test from qualifying for the
mandatory sentencing provision of section 948.06(2)(f)1.
This result is contrary to the plain language of the statute and the legislative
intent to show leniency to certain probationers for a first violation of probation.
We must defer to the legislative intent as expressed in the statute’s plain
language....
...Kaiser came within the plain language of the statute because his
violation was a “positive drug test.” Every positive drug test result necessarily
involves the possession of the ingested drug. Therefore, the trial court was
required to “modify or continue [the] probationary term” as section 948.06(2)(f)1.
provides.
Appellant’s interpretation of the statute is further supported by the canons of
statutory construction....
...‘contradictory’ manner.” Morgan v. State,
295 So. 3d 833, 836 (Fla. 4th DCA
2020).
The majority has not interpreted the statute as a harmonious whole, as it has
allowed a positive drug test that qualifies as a “low-risk violation” under section
948.06(9)(b)1. to disqualify a probationer from the mandatory sentencing
provision because it is also proof of a “felony, misdemeanor, or criminal traffic
offense” under section
948.06(9)(d)2. This reading of the statute forces a narrow
construction upon section
948.06(9)(b)1., thereby frustrating the legislature’s
intent. Such a reading “would not give meaning to the whole of the statutory
amendment and would be absurd.” Owens,
303 So. 3d at 997.
Finally, even if reading section
948.06(9)(b)1. together with section
948.06(9)(d)2....
CopyPublished | Florida 1st District Court of Appeal
...Second, it wasn’t a substantial violation of the Home Depot
employment condition. Had Scott gotten a full-time job at Lowe’s,
rather than Home Depot, it would not be a substantial
violation—let alone a material one, under the circumstances. See,
e.g., § 948.06(1)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2011 WL 1261139
...4th DCA 2002) (reversing habitual violent felony offender sentence where the trial court "may have been under the mistaken impression that [it] lacked any discretion in the matter"). Here, the circuit court had the discretion to revoke probation as the state requested, or reinstate probation as the defendant requested. See § 948.06(2)(a), Fla....
...(2009) (when a defendant admits to violating probation, the court "may forthwith revoke, modify, or continue the probation . . . or place the probationer into a community control program."). If the court desired to reinstate probation, it could do so under section 948.06 without such reinstatement constituting a downward departure sentence requiring a valid reason for the departure....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 4772
...ial court “may have been under the mistaken impression that [it] lacked any discretion in the matter”). Here, the circuit court had the discretion to revoke probation as the state requested, or reinstate probation as the defendant requested. See § 948.06(2)(a), Fla....
...(2009) (when a defendant admits to violating probation, the court “may forthwith revoke, modify, or continue the probation ... or place the probationer into a community control program.”). If the court desired to reinstate probation, it could do so under section 948.06 without such reinstatement constituting a downward departure sentence requiring a valid reason for the departure....
CopyPublished | District Court of Appeal of Florida
violent offender of special concern pursuant to section
948.06(8)(b), Florida Statutes (2016). Thereafter
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 3364, 1996 WL 154224
...§§
775.082(3)(d),
777.04(4)(c) and
790.19, Fla. Stat. (1989). . However, because the underlying offenses in this case were committed on November 22, 1990, the trial court is not required to credit Gardner with gain time against his subsequent sentence. §
948.06(6), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal
Per Curiam. The petition for writ of certiorari is denied on the merits. See § 948.06(1)(f), Fla....
CopyPublished | District Court of Appeal of Florida
writ of certiorari is denied on the merits. See §
948.06(1)(f), Fla. Stat. (2014); Blackshear v. State
CopyPublished | Florida 1st District Court of Appeal
Per Curiam. The petition for writ of certiorari is denied on the merits. See § 948.06(1)(f), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 2847, 2009 WL 873559
...As we did in Williams v. State,
4 So.3d 728 (Fla. 5th DCA 2009), we reverse the order denying Perez's rule 3.800(a) motion and remand to the trial court to reconsider this issue. REVERSED and REMANDED. PALMER, C.J., TORPY and EVANDER, JJ., concur. NOTES [1] Section
948.06(1)(a), Florida Statutes, authorizes any law enforcement officer who is aware of the probationary status of a probationer and who has reasonable grounds to believe that the probationer has violated his or her probation in a material res...
CopyPublished | Florida 4th District Court of Appeal | 1998 Fla. App. LEXIS 4760, 1998 WL 204871
...The Court reached for the Court file and after reviewing it stated on the record that Petitioner’s sentence, if convicted, would be thirty-six (36) months for Violation of Probation. 4. For Violation of Probation petitioner eould receive thirty-three (33) to fifty-five (55) months Department of Corrections. 5. Fla. Stat. 948.06 alows a trial court to modify or continue probation, rather than revoke and sentence a violator to anything s/he could have received when the plea was entered....
CopyPublished | Florida 3rd District Court of Appeal
... In his second claim on appeal, Swain contends that the trial court erred
in entering an order designating Swain a Violent Felony Offender of Special
Concern (VFOSC) who poses a danger to the community, without making
the written findings required by section 948.06(8)(e), Florida Statutes (2022),
which provides:
(e) If the court, after conducting the hearing required by
paragraph (d), determines that a violent felony offender of special
concern has committed a violation of pro...
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 5551, 2001 WL 417674
...ters for the sound professional judgment of the attorney representing the petitioner, and no mandatory duty is created for the public defender to file such motions. However, even if we were to entertain Martin’s petition, it would still fail under section 948.06, Florida Statutes (1999)....
CopyPublished | Florida 4th District Court of Appeal
...ssee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant challenges the revocation of his probation and sentence
imposed. He qualified as a violent felony offender of special concern
pursuant to section 948.06(8)(c), Florida Statutes (2017)....
...proceeded with a sentencing hearing. The purpose of the hearing was to
determine whether appellant posed a danger to the community, which
would require the revocation of his probation. Despite the State’s request,
the court failed to make any findings of dangerousness, contrary to section
948.06(8)(e)1., Florida Statutes (2017)....
...issues of mitigation.
For purposes of resentencing, we do address and reject appellant’s
contention that we should recede from Souza v. State,
229 So. 3d 387 (Fla.
4th DCA 2017), holding that a judicial finding of dangerousness for
purposes of section
948.06(8)(e) does not violate Apprendi v....
CopyPublished | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 3433, 2009 WL 1066286
..."Due process requires that the State prove an alleged violation of probation at a hearing or that the defendant enter a knowing admission to a violation before the trial court revokes the defendant's probation." Balsinger v. State,
974 So.2d 592, 593 (Fla. 2d DCA 2008). Under section
948.06(2)(a), Florida Statutes (2007), the trial court must advise the probationer of the alleged violation....
CopyPublished | District Court of Appeal of Florida
revoking her probation. Scofield relies on section
948.06(2)(b), Florida Statutes (2020): (b)
CopyPublished | Florida 2nd District Court of Appeal | 1982 Fla. App. LEXIS 19846
...son. The revocation hearing was held on June 26, 1981, and the trial judge entered the order which revoked Stearns’ probation on that date. However, the judgment and sentence were entered and filed with the clerk one week earlier on June 19, 1981. Section 948.06, Florida Statutes (1979) mandates that a judgment and sentence be entered only after probation has been revoked....
CopyPublished | Florida 3rd District Court of Appeal | 1980 Fla. App. LEXIS 15853
...State,
361 So.2d 800 (Fla. 3rd DCA 1978); Segarra v. State,
360 So.2d 79 (Fla. 3rd DCA 1978). The Second and Fourth District Courts of Appeal have held to the contrary. Johnson v. State,
378 So.2d 335 (Fla. 2nd DCA 1980); Mulder v. State,
356 So.2d 870 (Fla. 4th DCA 1978). Section
948.06(1), Florida Statutes (1979) provides, in part: If such probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he shall have previously been adjudged guilty, and impose...
CopyPublished | District Court of Appeal of Florida | 1963 Fla. App. LEXIS 3541
...e parties to this cause and fail to find wherein the trial court has departed from the essential requirements of the law or has denied the appellant due process. The authority of the court to revoke probation and to impose sentence is statutory. See § 948.06, Fla.Stat., F.S.A....
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 3551, 1994 WL 133531
...t. See, e.g., Desue. Accordingly, we vacate the sentence in Case No. 78-107, and remand for resentencing in accordance with this opinion. MINER and BENTON, JJ., and WENTWORTH, Senior Judge, concur. . While the legislature’s subsequent amendment to section 948.06, Florida Statutes, gave the trial court discretion not to award such gain-time, Baker’s prior offense was committed before the effective date of the amendment, and thus it does not apply....
CopyPublished | Florida 2nd District Court of Appeal | 1990 Fla. App. LEXIS 2655, 1990 WL 48577
...HEB, Acting Chief Judge. This appeal addresses whether a trial court can modify community control conditions based on an offender’s out-of-court written agreement and waiver without first conducting a hearing with the defendant present pursuant to section 948.06, Florida Statutes (1987)....
...to include a condition that he enter and complete a program at a probation and restitution center. No one suggests the additional condition was inappropriate. Rather, the defendant contends that his community control was improperly modified because section 948.06 mandates a judicial proceeding. We think, however, that where, as here, a voluntary modification occurs before the filing of any affidavit of violation, section 948.06 does not come into play....
...o has executed a waiver and motion to modify community control, we disagree. Accordingly, we affirm the revocation of the defendant’s community control and the sentence imposed thereafter. HALL and PARKER, JJ., concur. . The procedures detailed in section 948.06 have limited application....
...The section is predicated on the occurrence that during "the period of probation or community control there is reasonable ground to believe a probationer or offender in community control has violated his probation or community control in a material respect." § 948.06(1), Fla.Stat. (1987). . Holcombe cites Carter, Gurganus, and Patrick, supra. All three cases hold that section 948.06 requires a hearing when a probation or community control period is being extended regardless of the offender’s consent....
CopyPublished | Florida 3rd District Court of Appeal
...probation is abuse of discretion); Barber v. State,
207 So. 3d 379, 384 (Fla.
2
5th DCA 2016) (finding that in making a dangerousness determination, a trial
court’s findings must be based on one or more of the factors listed in section
948.06(8)(e)(1)(a)-(e), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 5441, 2015 WL 1650293
...da Statutes (2002) (emphasis supplied), which
provides:
A violation or alleged violation of probation or the terms of a
community control program shall subject the youthful
offender to the provisions of s. 948.06....
...To understand the full import of the first sentence of this statute, some statutory
history is helpful. When section
958.14 was enacted in 1978, it provided simply that "[a]
violation or alleged violation of probation or the terms of a community control program
shall subject the youthful offender to the provisions of s.
948.06(1)....
...ements, do not apply to
a sentence imposed after a substantive violation of probation or community control.
Section
958.14 states that a violation of probation shall subject the youthful offender to
sentencing under the general violation statute, section
948.06, which states that on
revocation of probation or community control the court "shall . . . impose any sentence
which it might have originally imposed before placing the probationer on probation or
the offender into community control." §
948.06(1), Fla....
...- 11 -
section
958.14, Florida Statues (1983), read: "A violation or
alleged violation of the terms of a community control
program shall subject the youthful offender to the provisions
of s.
948.06(1)." Subsection
948.06(1), Florida Statutes
(1983), provided that, if community control is revoked
because of a violation, the court may "impose any sentence
which it might have originally imposed before placing the...
...and the post-1990
version of section
958.14—at issue here—state in the first sentence that "[a] violation or
alleged violation of probation or the terms of a community control program shall subject
the youthful offender to the provisions of s.
948.06(1)."
In Arnette, the supreme court concluded that this language in section
958.14 should not be considered as the legislature's statement that every conceivable
adult sanction should be available upon resentencing youthful offenders for violations of
probation without limitation....
...l offender sentencing
options beyond those available under the version of section
958.14 applicable in
Arnette, I see nothing in the post-Arnette amendments to section
958.14 that changes
this conclusion or authorizes the limitless application of section
948.06(1) to youthful
offender sentences following a substantive violation....
...Accordingly, I conclude that Arnette applies
and supports a reversal in this case.
I also disagree with the majority's assessment that the first line of section
958.14 is an "unqualified" directive that upon a substantive violation of supervision
youthful offenders are to be resentenced only pursuant to section
948.06(1)....
CopyPublished | Florida 1st District Court of Appeal | 1982 Fla. App. LEXIS 19781
occur before the order of probation was imposed. § 948.-06(1), Fla.Stat. (1981); O’Steen v. State, 261 So
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 4232, 1993 WL 114673
...s’ imprisonment with credit for time served. The written sentence gave Carter credit for only actual time served. Carter argues and the state agrees that he should be given credit for the entire four years served because the amendments to sections
948.06(6) and
944.28(1), Florida Statutes (1987) were not effective at the time of his offense....
...In Green , the supreme court concluded that when the probationary part of a split sentence is revoked, a prisoner must be given credit for gain time earned during the incarcerative portion of his sentence. Because the effective dates of the amendments to sections
948.06(6) and
944.28(1), Florida Statutes (1987) are after the date on which Carter committed his offense, Carter’s violation of probation sentence must be reversed and remanded with directions to credit Carter with four years for the state prison portion of his split sentence. Reversed and remanded for resentenc-ing. FRANK, A.C.J., and BLUE, J., concur. . Section
948.06(6), Florida Statutes (1989) permits the trial court to forfeit gain time at sentencing when revoking a community control sentence when the offense occurred after October 1, 1989....
CopyPublished | Florida 2nd District Court of Appeal
...form of judgments against any outstanding financial will all
be reduced to judgement.
Mr. Lawrence argues, and the State agrees, that resentencing is
warranted because the above statement indicates that the trial court may
not have understood its discretion under section 948.06(2)(a) and (b),
Florida Statutes (2023), to "impose any sentence which it might have
originally imposed." See Casey v....
CopyPublished | Florida 5th District Court of Appeal | 1996 WL 170187
...*301 To the extent this credit was not awarded, there was error. Waters does not require, however that credit for time served on probation be applied toward the incarcerative portion of the split sentence as the defendant argues. See Meader v. State,
665 So.2d 344 (Fla. 4th DCA 1995); §
948.06(2), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal
...Maxwell filed this
appeal within thirty days of rendition of that denial.
II
Confusion arises when courts persist in the loose use of the
term “plea” in the context of VOP proceedings. There simply is no
such thing as a plea to a charged VOP. The principal statute
governing VOPs, section 948.06, Florida Statutes, does not refer to
such a plea. Rather, the statute gives a probationer the option to
“admit” that the charged VOP is true, or to not admit it to be true.
§ 948.06(2)(a), Fla....
...Stat.
He sought way back to withdraw that plea, and when the trial
court denied the request, the adjudication of guilt stood.
Later, when the probation officer charged Maxwell with
violating the conditions of his probation, the officer initiated the
process spelled out in section 948.06—and not a new criminal
prosecution. See § 948.06(1)(a)–(b), Fla....
...conviction—is not “based solely on the same facts at issue” before
the trial court at the time of the original sentence. Poore,
531 So.
2d at 163 (citing Pearce,
395 U.S. 711 (1969)).
Key here is that the enhanced sentence imposed on Maxwell
under section
948.06 truly must be based on new information
gleaned from the defendant’s behavior while on probation, not
merely on a trial judge’s change of heart. That is, there must be “a
relevant new fact not previously considered” before the trial court
“constitutionally is permitted to impose a greater sentence” under
section
948.06....
...legal status in the criminal case, as he already had been
adjudicated guilty in 2013. The only legal effect of that admission
is that it supported the trial court’s authority at that point to
resentence Maxwell to any term of incarceration that “it might
have originally imposed.” § 948.06(2)(b), (e), Fla....
...t, and
is not to be made the victim of whim or caprice.”).
When Maxwell “admit[ted] to be true” the charged VOP, then,
he effectively waived this process that ordinarily would be due him
for determination of that new sentencing fact. Cf. § 948.06(b), (d),
Fla....
...but “waiver is the intentional relinquishment or abandonment of
a known right” (internal quotation and citation omitted)). An
admission has the effect of waiving the probationer’s entitlement
to “an opportunity to be fully heard on his or her behalf in person
or by counsel.” § 948.06(2)(d), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...We affirm the revocation order and resulting sentence without comment.
"If probation or community control is revoked, the court shall adjudge the
probationer or offender guilty of the offense charged and proven or admitted, unless he
or she has previously been adjudged guilty. . . ." § 948.06(2)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal
...s
comments at the hearing make clear that it would have found the violation
of either condition sufficient to revoke probation. Cf. Costanz v. State,
740
So. 2d 71 (Fla. 4th DCA 1999). As to appellant’s sentence, the trial court
found pursuant to section
948.06(8)(c)(15), Florida Statutes (2018), that
she was a danger to the community....
...When she violated her probation a second time,
the court found she had committed substantial violations of the probation.
At the sentencing hearing, after the presentation of evidence, the State
argued for the maximum sentence of five years in prison. The prosecutor
also noted that under section 948.06(8), appellant was a violent felony
offender of special concern, and requested that the court find that she was
a danger to the community, as allowed under the statute....
...ment; and
ordered DNA swabs to be taken. It then stated that the proceeding was
finished but asked whether there was anything else to come before the
court. At that point, the prosecutor asked the court to make a finding of
dangerousness pursuant to section 948.06(8), as it had previously
requested....
...Nevertheless, we do not recede from Souza, as we conclude that
neither Brown v. State,
260 So. 3d 147 (Fla. 2018) nor U.S. v. Haymond,
3
139 S. Ct. 2369 (2019) require that a jury make a finding of dangerousness
pursuant to section
948.06(8)(e), Florida Statutes, in order to comply with
the Sixth Amendment.
When a defendant is convicted of a criminal offense, either as a result
of a plea or jury verdict, the Criminal Punishment Code, section 921.001,
Florida Statutes (2018), et seq., governs the sentence....
...§
948.012(1), Fla. Stat. (2018). In such event, the court will
“stay and withhold the imposition of the remainder of sentence imposed
upon the defendant and direct that the defendant be placed upon
probation[.]”
Upon a violation of probation, section
948.06(8)(e), Florida Statutes
requires mandatory revocation of probation for defendants who have
committed certain crimes when the court makes a finding that the
defendant is a danger to the community....
...whether
the court must revoke probation. In other words, the court cannot
continue to suspend the sentence and allow the defendant to remain on
probation if the court finds that the defendant is a danger to the
community.
In Souza we held that section 948.06(8)(e), Florida Statutes, was not an
element for sentencing purposes....
...In this case, the danger finding does not increase either the statutory
maximum or the statutory minimum. The sentence, both at the time of
the plea and the time of revocation, was governed by the Criminal
5
Punishment Code. That section 948.06(8)(e)2.a requires revocation of
probation upon a judicial finding of dangerousness only returns the
defendant to the position she was at the time of the plea—any sentence
which could be imposed pursuant to the Criminal Punishment Code.
Haymond also does not change this result....
...thin the range of
punishments authorized by the jury’s verdict. But it does
mean that a jury must find any facts that trigger a new
mandatory minimum prison term.
Haymond,
139 S. Ct. at 2380 (footnotes omitted).
In contrast, section
948.06(8)(e) does not change the range of
punishments under the Criminal Punishment Code....
