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Johnson v. State4/6/2005
Appellant, Tameka Johnson, has timely appealed the revocation of her probation, arguing that the trial court revoked her probation on a charge not alleged in the affidavit and then failed to make sufficient factual findings to support such a revocation. We agree as to both grounds and reverse for the reasons that follow.
In December 2001, Johnson received a withheld sentence and two years probation after entering a no-contest plea to Battery on a Law Enforcement Officer. In September 2002, the State filed an Affidavit of Violation of Probation alleging that she committed a new law violation (Count I), namely robbery of less that $300, and three separate violations for failure to pay court costs and public defender fees. The State filed several affidavits for failure to comply with pretrial release, all of which involved tampering with her electronic monitoring device. However, the record on appeal does not reflect any amended or additional Affidavit of Violation of Probation. On June 26, 2003, the trial court dismissed Count I of the Affidavit of Violation of Probation. Finally, on October 9, 2003, the trial court held the violation of probation hearing.
The testimony material to the trial court's ultimate decision to revoke probation was by Mary Ann Holmes and Tara Lanier. Both witnesses testified about an incident that occurred in March 2003. According to Holmes, Johnson was in a car and followed the witnesses' car and harassed them. When both cars were stopped, Holmes claimed that Johnson jumped out and smashed their windows with a metal baseball bat. Lanier likewise corroborated Holmes' story. Contrarily, Johnson and her sister testified, acknowledging the incident, but claiming that Holmes and Lanier were the aggressors doing the chasing. The evidence is undisputed, however, that when Johnson's car was eventually stopped by the police, no bat was ever recovered.
At the conclusion of the hearing, the trial court found Johnson guilty of violating her probation, and sentenced her to the bottom of the guidelines, 39.3 months in Florida State Prison. Johnson asked specifically on which count the trial court was revoking and also whether the trial court found that she was able to pay the unpaid fees. The trial court responded: "I am finding her in violation based on the facts of a new crime." Johnson failed to object that her probation was revoked based on a charge not alleged in the affidavit. The trial court entered a written order conforming to its oral pronouncement.
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. The affidavit of violation alleged a new law violation for robbery in September 2002, but failed to include any allegation of a new law violation arising out of the incident occurring in March 2003. In fact, the trial court made abundantly clear that the factual basis for revoking Johnson's probation was a new law violation. However, the only new law violation which was addressed during the revocation hearing was that arising out of the uncharged March 2003 incident. Likewise, the new law violation based on robbery which was charged in the affidavit had already been dismissed by the trial court.
Although Johnson failed to contemporaneously raise this issue during the revocation hearing, revoking probation based on an allegation not charged in the affidavit of violation of probation constitutes fundamental error. See Howard v. State, 883 So. 2d 879 (Fla. 4th DCA 2004); Ray v. State, 855 So. 2d 1260, 1261 (Fla. 4th DCA 2003). The State acknowledges that it is a due process violation to revoke probation for violations not alleged in the affidav
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