J.D.D. v. State

District Court of Appeal of Florida

J.D.D. v. State

12 So. 3d 820, 2009 Fla. App. LEXIS 6965, 2009 WL 1425216

CourtDistrict Court of Appeal of Florida

DecidedMay 22, 2009

DocketNo. 1D08-5100

StatusPublished

Cited by2 cases

This text of 12 So. 3d 820 (J.D.D. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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J.D.D. v. State, 12 So. 3d 820, 2009 Fla. App. LEXIS 6965, 2009 WL 1425216 (Fla. Ct. App. 2009).

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Opinion

PER CURIAM.

Appellant, a minor, pled guilty to two counts of lewd and lascivious molestation and one count of lewd and lascivious exhibition. The circuit court entered a Disposition Order sentencing him to probation [821]*821and releasing him into his mother’s custody pending placement with a more adequate caregiver. Eventually, the court placed Appellant with a caregiver, where he continued serving his probation. Soon thereafter, the court determined the caregiver was unable to satisfactorily supervise Appellant. The court entered a Modified Disposition Order adjudicating Appellant delinquent, revoking his probation and re-sentencing him to commitment in a high risk residential program to be followed by a term of post-commitment probation. The court did not conduct a violation of probation hearing prior to issuing the Modified Disposition Order.

Generally, a trial court has authority to modify or rescind the terms or conditions of probation it imposes. See § 948.03(2), Fla. Stat. (2007); see also State v. 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. Stat. (2007); see also Burkhart v. State, 974 So .2d 1203 (Fla. 1st DCA 2008). Absent proof of a violation, a trial court cannot alter an order of probation by revoking or enhancing the terms thereof. See Clark v. State, 579 So.2d 109, 110-11 (Fla.1991); see also Burkhart, 974 So.2d at 1204-05.

Here, the circuit court committed fundamental error by revoking Appellant’s probation and resentencing him without determining he violated the terms of his probation. We therefore reverse the court’s final order and remand for further proceedings consistent with this opinion.

Additionally, the Modified Disposition Order incorrectly states Appellant was convicted of three counts of lewd or lascivious molestation. Appellant was actually convicted of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. We remand with directions that the circuit court’s final order reflect that Appellant pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition.

REVERSED and REMANDED.

HAWKES, C.J., VAN NORTWICK, and BROWNING, JJ„ concur.

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PER CURIAM.

Appellant, a minor, pled guilty to two counts of lewd and lascivious molestation and one count of lewd and lascivious exhibition. The circuit court entered a Disposition Order sentencing him to probation [821]*821and releasing him into his mother’s custody pending placement with a more adequate caregiver. Eventually, the court placed Appellant with a caregiver, where he continued serving his probation. Soon thereafter, the court determined the caregiver was unable to satisfactorily supervise Appellant. The court entered a Modified Disposition Order adjudicating Appellant delinquent, revoking his probation and re-sentencing him to commitment in a high risk residential program to be followed by a term of post-commitment probation. The court did not conduct a violation of probation hearing prior to issuing the Modified Disposition Order.

Generally, a trial court has authority to modify or rescind the terms or conditions of probation it imposes. See § 948.03(2), Fla. Stat. (2007); see also State v. 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. Stat. (2007); see also Burkhart v. State, 974 So .2d 1203 (Fla. 1st DCA 2008). Absent proof of a violation, a trial court cannot alter an order of probation by revoking or enhancing the terms thereof. See Clark v. State, 579 So.2d 109, 110-11 (Fla.1991); see also Burkhart, 974 So.2d at 1204-05.

Here, the circuit court committed fundamental error by revoking Appellant’s probation and resentencing him without determining he violated the terms of his probation. We therefore reverse the court’s final order and remand for further proceedings consistent with this opinion.

Additionally, the Modified Disposition Order incorrectly states Appellant was convicted of three counts of lewd or lascivious molestation. Appellant was actually convicted of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. We remand with directions that the circuit court’s final order reflect that Appellant pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition.

REVERSED and REMANDED.

HAWKES, C.J., VAN NORTWICK, and BROWNING, JJ„ concur.

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12 So. 3d 820, 2009 Fla. App. LEXIS 6965, 2009 WL 1425216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jdd-v-state-fladistctapp-2009.

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