Moment v. State

District Court of Appeal of Florida

Moment v. State

785 So. 2d 717, 2001 Fla. App. LEXIS 7159, 2001 WL 543310

CourtDistrict Court of Appeal of Florida

DecidedMay 23, 2001

DocketNo. 4D00-4571

StatusPublished

Cited by1 cases

This text of 785 So. 2d 717 (Moment 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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Moment v. State, 785 So. 2d 717, 2001 Fla. App. LEXIS 7159, 2001 WL 543310 (Fla. Ct. App. 2001).

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Opinion

PER CURIAM.

This petition for writ of habeas corpus alleging ineffective assistance of appellate counsel arises from this court’s affirmance of Moment’s violation of probation. Moment v. State, 773 So.2d 577 (Fla. 4th DCA 2000). Moment argues that appellate counsel was ineffective in failing to supplement the record on appeal with a copy of the probation order. We grant Moment’s petition and reverse his conviction for violation of probation.

On direct appeal Moment sought reversal of his conviction by arguing that there was no condition in the order requiring him to submit to random drug testing. This court affirmed, noting that the record on appeal did not contain a copy of the probation order and while on notice of such defect Moment’s counsel did not move to supplement the record. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Cirillo v. Davis, 732 So.2d 387, 389 (Fla. 4th DCA), rev. denied, 751 So.2d 50 (1999).

In response to this petition the state provided a copy of the probation order. It does not include a condition requiring random urinalysis. We reject the state’s argument that the probation officer’s testimony supports the charged violation. Moment would have prevailed on appeal. Rutherford v. Moore, 774 So.2d 637 (Fla.2000); Alvarez v. State, 635 So.2d 1053 (Fla. 4th DCA 1994).

The petition is granted and the conviction for violation of probation is reversed.

FARMER, KLEIN and STEVENSON, JJ., concur.

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PER CURIAM.

This petition for writ of habeas corpus alleging ineffective assistance of appellate counsel arises from this court’s affirmance of Moment’s violation of probation. Moment v. State, 773 So.2d 577 (Fla. 4th DCA 2000). Moment argues that appellate counsel was ineffective in failing to supplement the record on appeal with a copy of the probation order. We grant Moment’s petition and reverse his conviction for violation of probation.

On direct appeal Moment sought reversal of his conviction by arguing that there was no condition in the order requiring him to submit to random drug testing. This court affirmed, noting that the record on appeal did not contain a copy of the probation order and while on notice of such defect Moment’s counsel did not move to supplement the record. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Cirillo v. Davis, 732 So.2d 387, 389 (Fla. 4th DCA), rev. denied, 751 So.2d 50 (1999).

In response to this petition the state provided a copy of the probation order. It does not include a condition requiring random urinalysis. We reject the state’s argument that the probation officer’s testimony supports the charged violation. Moment would have prevailed on appeal. Rutherford v. Moore, 774 So.2d 637 (Fla.2000); Alvarez v. State, 635 So.2d 1053 (Fla. 4th DCA 1994).

The petition is granted and the conviction for violation of probation is reversed.

FARMER, KLEIN and STEVENSON, JJ., concur.

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785 So. 2d 717, 2001 Fla. App. LEXIS 7159, 2001 WL 543310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moment-v-state-fladistctapp-2001.

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