Moschiano v. State

District Court of Appeal of Florida

Moschiano v. State

12 So. 3d 922, 2009 Fla. App. LEXIS 9761, 2009 WL 2059433

CourtDistrict Court of Appeal of Florida

DecidedJuly 17, 2009

Docket2D08-4904

StatusPublished

Cited by2 cases

This text of 12 So. 3d 922 (Moschiano 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.

Bluebook

Moschiano v. State, 12 So. 3d 922, 2009 Fla. App. LEXIS 9761, 2009 WL 2059433 (Fla. Ct. App. 2009).

Pincite

Opinion

PER CURIAM.

James P. Moschiano appeals the revocation of an amended and reinstated term of probation and resulting sentence of five years’ incarceration for domestic violence aggravated battery, a second-degree felony. We find no merit in the first argument, that the circuit court abused its discretion in rejecting his claim that although he admitted the violation, it was not willful or substantial. However, we conclude his second argument is meritorious — that the circuit court erred by failing to render a written order of revocation. We therefore remand this case for entry of a written order of revocation which specifies the conditions that the circuit court found Mr. Moschiano had violated. See Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006) 1 ; Montonez v. State, 724 So.2d 650 (Fla. 2d DCA 1999).

Affirmed; remanded with instructions.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.

1

. We note that the procedure used in this case upon a finding of violation of probation— rendering a repeat judgment of conviction instead of an order of revocation — is the same procedure used in Hillsborough County that we disapproved in Dawkins, 936 So.2d at 711-12. It would behoove the circuit court to amend its procedure in violation of probation and community control cases to avoid the pitfalls and potential problems outlined there.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

James P. Moschiano appeals the revocation of an amended and reinstated term of probation and resulting sentence of five years’ incarceration for domestic violence aggravated battery, a second-degree felony. We find no merit in the first argument, that the circuit court abused its discretion in rejecting his claim that although he admitted the violation, it was not willful or substantial. However, we conclude his second argument is meritorious — that the circuit court erred by failing to render a written order of revocation. We therefore remand this case for entry of a written order of revocation which specifies the conditions that the circuit court found Mr. Moschiano had violated. See Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006) 1 ; Montonez v. State, 724 So.2d 650 (Fla. 2d DCA 1999).

Affirmed; remanded with instructions.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.

1

. We note that the procedure used in this case upon a finding of violation of probation— rendering a repeat judgment of conviction instead of an order of revocation — is the same procedure used in Hillsborough County that we disapproved in Dawkins, 936 So.2d at 711-12. It would behoove the circuit court to amend its procedure in violation of probation and community control cases to avoid the pitfalls and potential problems outlined there.

Cite This Page — Counsel Stack

Bluebook (online)

12 So. 3d 922, 2009 Fla. App. LEXIS 9761, 2009 WL 2059433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moschiano-v-state-fladistctapp-2009.

Opinion

Related

Cite This Page — Counsel Stack