Bennett v. State

672 So. 2d 606, 1996 Fla. App. LEXIS 4306, 1996 WL 194420

Opinion

PER CURIAM.

Robert Bennett appeals an order of the lower court finding him in violation of probation based on a conviction for battery. We reverse and remand.

At the violation of probation hearing, Bennett informed the lower court that he had filed a motion to withdraw his no contest plea entered in the battery case. Bennett argued that because the motion had not been ruled upon, his battery conviction was “pending.” The lower court rejected this argument finding Bennett violated probation based on the conviction. One week after the notice of appeal was filed in this case, Bennett was permitted to withdraw his plea in the battery case.

Under these unique circumstances, it was error for the lower court to adjudicate Bennett guilty of violating probation based on the battery conviction while the motion to withdraw plea was pending. The lower court should have waited for the motion to be resolved before ruling. Accordingly, we reverse and remand for a new violation of probation hearing.

BOOTH, JOANOS and VAN NORTWICK, JJ., concur.