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Langbaum v. State11/14/2001
En Banc
In Hines v. State, 358 So. 2d 183, 185 (Fla. 1978), our supreme court held that probation may not be permanently revoked upon a mere arrest. Several years later we relied on that decision in Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992), and found fundamental error where a violation of probation (VOP) charging document alleged merely that defendant has been arrested. Moreover we remanded the case with instructions to reinstate probation, rather than to allow an amended charging document and a new hearing. We reasoned that because an Information must allege all the essential elements of the criminal offense charged, a VOP charging document must necessarily be similarly precise and that imprecision results in exoneration. Today we retreat from the holding in Palmer.
In the case we confront today, defendant was serving probation as a youthful offender when he was charged with multiple counts of VOP. We are here concerned with only the first count charging him with having been arrested for driving under the influence (DUI). The VOP charging document did not specifically allege each of the elements of the offense of DUI and said nothing as to whether he had been convicted of the charge for which he had been arrested. At the revocation hearing, defendant objected to any testimony beyond the mere fact that he was arrested, but the court permitted other evidence. A police officer testified that he arrested defendant for DUI. Defendant admitted in his testimony that he was thereafter convicted on the DUI charge following a jury trial. The trial judge found him guilty of the violation and permanently revoked his probation. On appeal he argues that probation cannot be permanently revoked on the basis of a charge of mere arrest.
Our reasoning in Palmer is contained in the following portion of what is a very brief opinion:
"'An affidavit upon which a permanent revocation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence.' Hines, 358 So.2d at 185. Thus, we hold that the state's failure to allege appellant committed a trespass constituted fundamental error. See Hope v. State, 588 So.2d 255 (Fla. 5th DCA 1991) (failure of an information to allege essential elements of criminal offense constitutes fundamental error)." [e.o.] 603 So. 2d at 536. We now conclude that this rationale was incorrect.
We read too much into the supreme court's holding in Hines. There the court made clear that the VOP charging document need not contain the precision and detail that an information must bear:
"an allegation concerning the commission of a crime need not be set forth with the specificity required in criminal indictments and informations. The primary goal is notice comporting with minimal due process rights. If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him. 358 So. 2d at 185.
Moreover, Hines also holds that the sufficiency of the VOP charging document is subject to harmless error analysis:
"In this case, however, we find this to be harmless error since the record shows that the probationer clearly had actual notice of the charges, that he was arrested near the scene of the crime shortly after its occurrence, and that he made a confession to his involvement. There was no violation of the probationer's due process rights. Petitioner's probation was revoked upon adequate proof of burglary for which he was arrested by Deputy Blosser on 3/13/76. The circumstances here are not comparable to those cases in which a person's probation ha
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