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Nagel v. State5/17/2000
ed [to preserve the issue for appellate review] because a deprivation of the right to due process is a fundamental error. Wood v. State, 544 So.2d 1004 (Fla. 1989). See, e.g., Palmer v. State, 603 So. 2d 535 (Fla. 4th DCA 1992)(failure to allege the basic facts concerning the alleged probation violation is fundamental error). Richardson v. State, 694 So. 2d 147, 147 (Fla. 1st DCA 1997); see also Crum v. State, 286 So. 2d 268, 269 (Fla. 4th DCA 1973); Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999).
In Crum v. State, the defendant's probation was revoked for violating condition (e) which required him "to live honorably." Crum, 286 So. 2d at 268. The affidavit of violation alleged that the defendant "was arrested at 1:30 AM on December 28, 1971 by Officer Conrad Killian, O.P.D." Id. The state introduced competent substantial evidence at the defendant's violation of probation hearing that he had participated in a burglary in violation of his probation. Id. at 269. This court reversed the revocation of probation because the defendant was not specifically charged with committing a burglary in violation of the condition "to live honorably" or failing to observe a 10:00 p.m. curfew in violation of a different but applicable condition of probation. Id. We held that "fundamental due process requires that a revocation be based only on the violation alleged and after hearing." Id.(emphasis added).
Likewise, neither the violation of probation affidavit nor the violation report specifically alleged that appellant violated condition five of his probation when he broke a stockade rule by testing positive for alcohol. See Smith, 738 So. 2d at 435 (reversing the revocation of probation because it was based upon a condition not properly pled or proven). The state alleged that appellant violated the law because he was in possession of a controlled substance and tested positive for alcohol. The state did not allege a violation of the stockade rules. Consequently, we do not reach the question of whether a violation of the stockade rules constitutes a violation of law contemplated in condition five. However, the record supports appellant's argument that the trial court revoked his probation for a violation not specifically alleged in the probation affidavit. Therefore, the revocation of probation must be reversed. See id.; Crum, 286 So. 2d at 269.
Next, we agree that the trial court erred in sentencing appellant to ninety-days for violating his probation without giving appellant credit for time served. See Blakley v. State, 746 So. 2d 1182 (Fla. 4th DCA 1999). However, our reversal of the revocation of probation makes this issue moot.
Accordingly, we reverse the revocation of probation and remand for proceedings consistent herewith.
REVERSED and REMANDED.
STONE and TAYLOR, JJ., concur.
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