Hicks v. State

367 So. 2d 726, 1979 Fla. App. LEXIS 14117

Opinion

LETTS, Judge.

In a violation of probation proceeding the required affidavit setting forth the violation named only one count. Apparently not noticing this clerical oversight, the Judge revoked the probation as to a second count for an identical offense. The Public Defender appeals this latter revocation.¹ We reverse in part.

We are tempted to label this harmless error, but as the State itself admits in its brief:

This fact arguably would not excuse the State for apparently not following a necessary procedure. Certainly, this Court should affirm the sentence as to Count I and ... a vacation of the sentence as to Count II should be done without prejudice so that the State may properly file a new affidavit.

So be it. The sentence as to Count II is hereby set aside without prejudice to the State to properly re-file its affidavit as to Count II.

REVERSED IN PART IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.

1 . Note: the State does not appeal the substance of the revocation proceedings as to probation violation.