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Nagel v. State5/17/2000
Richard Nagel appeals the revocation of his probation. He contends that his violation of a stockade rule did not constitute a violation of condition five of the probation order. He also contends that the trial court erred in failing to award him credit for time served at sentencing.
A jury found appellant guilty of driving under the influence . He was placed on probation for one year with sixty-days to be served on long weekends. Under the terms of the probation order, appellant had to check-in at the stockade by 6:00 p.m.
On December 17, 1998, the state filed an affidavit alleging as follows:
Violation of Condition (5) of the Order of Probation, by failing to live and remain at liberty without violating any law, and as grounds for belief that [appellant] violated his probation, affiant states that on or about November 29, 1998, the aforesaid was in possession of a controlled substance, to-wit: Alcohol as shown by analysis of a urine sample obtained from the aforesaid on November 29, 1998, and confirmed by J. Skokowski, L.P.N., of the Palm Beach County Sheriff's Office, on November 29, 1998.
Contrary to the affidavit, Ms. Skokowski did not take a urine sample from appellant. Instead, Officer Santiago gave appellant a breath test that screened positive for alcohol. Although the violation report correctly explained that a breath test was performed rather than a urine test, nowhere within the report or affidavit did the state allege that appellant broke a stockade rule by testing positive for alcohol in violation of condition five of his probation.
The trial court concluded that the state sufficiently proved that appellant did consume and test positive for alcohol prior to checking in for his weekend program. However, the trial court questioned whether this was a condition of his probation, since " ormally testing for alcohol wouldn't be a violation of the law." The state explained that appellant broke "a rule of the long weekend program that individuals checking in to do their weekend time cannot have consumed alcohol." The state explained that condition five required appellant to live and remain at liberty without violating any law, whether "a law of the PRC center, a law of the Drug Farm, or a law of the weekend stockade program." The trial court concluded that "the violation in this case is not the fact necessarily that [appellant] tested positive for alcohol, but that he tested positive for alcohol when he reported to serve his long weekends thereby violating the conditions of his probation which required him to serve long weekends."
Thereafter, the trial court revoked appellant's probation and sentenced him to ninety-days in prison "without credit for time served." The trial court stated, " he State has met its burden establishing a violation of probation, that is a violation of condition number five of the defendant's release, that is the presence of alcohol which violates the terms and conditions of [appellant's] weekend or long weekends."
Appellant contends that the stockade rules are not "laws" under condition five, precluding the trial court from revoking his probation on this violation alone. He argues that the order of revocation should be reversed because neither the charging document nor the probation order specifically alleged a violation based upon his failure to comply with the stockade rules.
The revocation of a defendant's probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Wyns v. State, 679 So. 2d 882 (Fla. 5th DCA 1996); Harris v. State, 495 So. 2d 243 (Fla. 2d DCA 1986). . . . A contemporaneous objection not requir
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