Wyns v. State

679 So. 2d 882, 1996 WL 531695

• Court: District Court of Appeal of Florida
• Decided: September 20, 1996
• Docket: 95-1224
• Status: Published

Opinion

679 So.2d 882 (1996)

Curtis L. WYNS, Appellant,
v.
STATE of Florida, Appellee.

No. 95-1224.

District Court of Appeal of Florida, Fifth District.

September 20, 1996.

George T. Paulk, II, Palm Bay, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin Compton Jones, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

The trial court's order of violation of probation states that the court found that Curtis Leon Wyns violated Condition 4 of his probation by committing the offenses of aggravated battery and domestic battery. Condition 4 required him to "not violate any law while on probation." This written finding must be stricken because it conflicts with the court's oral finding that the revocation was based on Wyns having violated Condition 15 of his probation by "being hostile" to some unspecified victim. Walker v. State, 593 So.2d 301 (Fla. 2d DCA 1992). A violation of Condition 15 was in fact not alleged in the violation of probation charging document. Because fundamental due process requires revocation to be based upon only those violations alleged, the order of revocation is reversed. Towson v. State, 382 So.2d 870 (Fla. 5th DCA 1980). We note, additionally, that the testimony at the violation hearing does not support the finding that Wyns violated Condition 4. The alleged victim testified that she was not battered and, the hearsay statements of the police officer cannot, by themselves, support a probation violation. Colina v. State, 629 So.2d 274 (Fla. 2d DCA 1993).

REVERSED.

PETERSON, C.J., and DAUKSCH and ANTOON, JJ., concur.