Thomas v. State

District Court of Appeal of Florida

Thomas v. State

159 So. 3d 937, 2015 Fla. App. LEXIS 3404, 2015 WL 1040617

CourtDistrict Court of Appeal of Florida

DecidedMarch 11, 2015

Docket3D13-1794

StatusPublished

Cited by5 cases

This text of 159 So. 3d 937 (Thomas 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

Thomas v. State, 159 So. 3d 937, 2015 Fla. App. LEXIS 3404, 2015 WL 1040617 (Fla. Ct. App. 2015).

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Opinion

WELLS, Judge.

Jamal Thomas appeals from the revocation of his probation for failing to complete community service hours pursuant to the terms of a plea agreement and for committing the new offense of aggravated battery during a jailhouse fight while in custody on unrelated charges. 1 We agree it was error to revoke probation for failure to complete community service hours because this basis was not alleged in the affidavit of violation of probation, see Johnson v. State, 899 So.2d 436, 438 (Fla. 4th DCA 2005) (“The trial court abused its discretion and violated Johnson’s due process rights by revoking her probation for a charge not alleged in the affidavit.”), and because his failure was not willful because he was unable to complete his service while incarcerated on the unrelated charges. See Muthra v. State, 777 So.2d 1067, 1068 (Fla. 3d DCA 2001) (finding that the defendant’s failure to complete community service hours “cannot be deemed willful where he was unable to *938 comply with the special conditions due to his incarceration on unrelated charges during the last three months of the probationary period”).

We nevertheless affirm the revocation of his probation for committing the new offense of aggravated battery. See Haygood v. State, 687 So.2d 318, 319 (Fla. 4th DCA 1997) (affirming revocation of probation where the record was clear that the trial court would have still revoked probation solely on the proper violations of community control).

The State concedes that the trial court erred by failing to enter a written order revoking Thomas’ probation. See Forbes v. State, 127 So.3d 826 (Fla. 4th DCA 2013). We therefore remand for entry of a written order that conforms with the trial court’s oral pronouncement only as to Thomas’ willful and substantial violation of his probation for committing the new offense of aggravated battery.

1

. The unrelated charges, which were the original basis for revoking Thomas’ probation, were ultimately nolle prossed by the State.

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WELLS, Judge.

Jamal Thomas appeals from the revocation of his probation for failing to complete community service hours pursuant to the terms of a plea agreement and for committing the new offense of aggravated battery during a jailhouse fight while in custody on unrelated charges. 1 We agree it was error to revoke probation for failure to complete community service hours because this basis was not alleged in the affidavit of violation of probation, see Johnson v. State, 899 So.2d 436, 438 (Fla. 4th DCA 2005) (“The trial court abused its discretion and violated Johnson’s due process rights by revoking her probation for a charge not alleged in the affidavit.”), and because his failure was not willful because he was unable to complete his service while incarcerated on the unrelated charges. See Muthra v. State, 777 So.2d 1067, 1068 (Fla. 3d DCA 2001) (finding that the defendant’s failure to complete community service hours “cannot be deemed willful where he was unable to *938 comply with the special conditions due to his incarceration on unrelated charges during the last three months of the probationary period”).

We nevertheless affirm the revocation of his probation for committing the new offense of aggravated battery. See Haygood v. State, 687 So.2d 318, 319 (Fla. 4th DCA 1997) (affirming revocation of probation where the record was clear that the trial court would have still revoked probation solely on the proper violations of community control).

The State concedes that the trial court erred by failing to enter a written order revoking Thomas’ probation. See Forbes v. State, 127 So.3d 826 (Fla. 4th DCA 2013). We therefore remand for entry of a written order that conforms with the trial court’s oral pronouncement only as to Thomas’ willful and substantial violation of his probation for committing the new offense of aggravated battery.

1

. The unrelated charges, which were the original basis for revoking Thomas’ probation, were ultimately nolle prossed by the State.

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159 So. 3d 937, 2015 Fla. App. LEXIS 3404, 2015 WL 1040617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-state-fladistctapp-2015.

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