Rodgers v. State

District Court of Appeal of Florida

Rodgers v. State

171 So. 3d 803, 2015 Fla. App. LEXIS 11807, 2015 WL 4681101

CourtDistrict Court of Appeal of Florida

DecidedAugust 7, 2015

Docket2D14-1366

StatusPublished

Cited by1 cases

This text of 171 So. 3d 803 (Rodgers 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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Rodgers v. State, 171 So. 3d 803, 2015 Fla. App. LEXIS 11807, 2015 WL 4681101 (Fla. Ct. App. 2015).

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Opinion

SLEET, Judge.

Earl Rodgers challenges the revocation of the probation he was serving for the offense of sexual activity with a child. We affirm the revocation of Rodgers’ probation but remand with directions to the trial court to strike that portion of the revocation order finding that Rodgers violated condition twenty-five of his supervision by having contact with the victim’s brother.

In its order of revocation, the trial court found that Rodgers violated his probation by (1) failing to provide all of his email addresses to his probation officer (condi1 tion seven), (2) having contact with the victim (condition twenty-two), and (3) having contact with the victim’s mother, the victim’s sister, and the victim’s brother (three violations of condition twenty-five). The record, however, does not contain competent substantial evidence that Rodgers had contact with the victim’s brother. As such, that violation is not supported by the greater weight of the evidence and must be stricken. See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (“The trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation.”).

Nevertheless, we affirm the revocation of Rodgers’ probation.

When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. Only when this court cannot determine from the record whether *804 the trial court would have revoked the defendant’s probation' based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court.

Lee v. State, 67 So.3d 1199, 1201-02 (Fla. 2d DCA 2011) (citations omitted).

Here, it is clear from the record that the trial court would have revoked Rodgers’ probation based on his other violations, especially his having contact with the victim’s sixteen-year-old sister. Accordingly, we affirm the revocation of probation and remand with directions to the trial court to strike the violation of condition twenty-five based on Rodgers’ contact with the victim’s brother and to enter a corrected revocation order.

Affirmed and remanded.

CASANUEVA and MORRIS, JJ., Concur.

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SLEET, Judge.

Earl Rodgers challenges the revocation of the probation he was serving for the offense of sexual activity with a child. We affirm the revocation of Rodgers’ probation but remand with directions to the trial court to strike that portion of the revocation order finding that Rodgers violated condition twenty-five of his supervision by having contact with the victim’s brother.

In its order of revocation, the trial court found that Rodgers violated his probation by (1) failing to provide all of his email addresses to his probation officer (condi1 tion seven), (2) having contact with the victim (condition twenty-two), and (3) having contact with the victim’s mother, the victim’s sister, and the victim’s brother (three violations of condition twenty-five). The record, however, does not contain competent substantial evidence that Rodgers had contact with the victim’s brother. As such, that violation is not supported by the greater weight of the evidence and must be stricken. See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (“The trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation.”).

Nevertheless, we affirm the revocation of Rodgers’ probation.

When a trial court relies on both proper and improper grounds for revocation but it is clear from the record that the trial court would have revoked probation even without the existence of improper grounds, this court and others have affirmed the revocation of probation and remanded for entry of a corrected revocation order. Only when this court cannot determine from the record whether *804 the trial court would have revoked the defendant’s probation' based solely on the proper grounds will this court reverse and remand for reconsideration by the trial court.

Lee v. State, 67 So.3d 1199, 1201-02 (Fla. 2d DCA 2011) (citations omitted).

Here, it is clear from the record that the trial court would have revoked Rodgers’ probation based on his other violations, especially his having contact with the victim’s sixteen-year-old sister. Accordingly, we affirm the revocation of probation and remand with directions to the trial court to strike the violation of condition twenty-five based on Rodgers’ contact with the victim’s brother and to enter a corrected revocation order.

Affirmed and remanded.

CASANUEVA and MORRIS, JJ., Concur.

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171 So. 3d 803, 2015 Fla. App. LEXIS 11807, 2015 WL 4681101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodgers-v-state-fladistctapp-2015.

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