Carmichael v. State

834 So. 2d 421, 2003 WL 131730

Opinion

834 So.2d 421 (2003)

Dwight Dale CARMICHAEL, Appellant,
v.
STATE of Florida, Appellee.

No. 2D01-5604.

District Court of Appeal of Florida, Second District.

January 17, 2003.

James Marion Moorman, Public Defender, Bartow, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.

Charlie Crist, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Dwight Dale Carmichael challenges the revocation of his probation, arguing that no affidavit of violation appears in the record. We reverse.

An order revoking probation should be vacated if no formal charge of violation of probation has been filed, and this issue may be raised for the first time on appeal. Johnston v. State, 684 So.2d 262 (Fla. 4th DCA 1996).

Here, no affidavit of probation appears in the record, and the Highlands County clerk of circuit court has filed a "certificate of non-existence," stating that "a diligent search has been made for the Affidavit of Violation of Probation, and said document does not exist or cannot be located."

Although Carmichael's probation officer testified that she had "submitted" an affidavit of violation, this does not prove that the affidavit was formally filed. Accordingly, we reverse the revocation order.

Reversed.

SALCINES and STRINGER, JJ., Concur.