Opinion
Case No. 2D17-4283
02-05-2020
Jeremy Cole JACKSON, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Carol J. Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Jeremy Jackson appeals four final orders revoking his probation. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(D). Because we find merit in three of the arguments that Mr. Jackson raises on appeal, we remand for entry of corrected orders revoking Mr. Jackson's probation.
First, the circuit court found Mr. Jackson in violation of condition five of his probation for committing the new law offense of assault. However, the State's affidavit of violation of probation did not allege that Mr. Jackson had committed an assault. "A trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation. [R]evoking an individual's probation for conduct not alleged in the charging document deprives the individual of due process and constitutes fundamental error." McRae v. State, 88 So. 3d 384, 385 (Fla. 2d DCA 2012) (alteration in original) (citations omitted) (first quoting Johnson v. State, 811 So. 2d 749, 750 (Fla. 2d DCA 2002) ; then quoting Wells v. State, 60 So. 3d 551, 553 (Fla. 1st DCA 2011) ); see also Howard v. State, 883 So. 2d 879, 880 (Fla. 4th DCA 2004) ("It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation."); Smith v. State, 738 So. 2d 433, 435 (Fla. 1st DCA 1999) ("Revocation of probation on grounds never alleged in writing violates due process and is fundamental error."). Accordingly, the violation of this condition of probation should be stricken from the orders revoking Mr. Jackson's probation.
Second, the circuit court found Mr. Jackson in violation of condition nine of his probation for failing to comply with his probation officer's order that he not have contact with two individuals. While "a probation officer may give a probationer routine supervisory directions that are necessary to carry out the conditions imposed by the trial court. ... an instruction that essentially imposes a new condition of probation is not a routine supervisory direction and cannot support a finding that the probationer is in violation." See Miller v. State, 958 So. 2d 981, 984-85 (Fla. 2d DCA 2007). The officer's "no contact" order essentially imposed a new condition of probation that went beyond a routine supervisory instruction. See Haynes v. State, 440 So. 2d 661, 662 (Fla. 1st DCA 1983) ("Count 4 of the affidavit alleged that contrary to his probation officer's instruction, defendant went to his wife's house .... [T]his instruction by defendant's probation officer was not a routine supervisory direction but essentially amounted to a new condition of probation which a probation officer is without authority to prescribe."). Accordingly, the violation of this condition of probation should be stricken from the orders revoking Mr. Jackson's probation.
Finally, the orders revoking Mr. Jackson's probation erroneously state that he admitted to the charged violations. He did not. On remand, those orders must be corrected.
Because the record is clear that the circuit court would have revoked Mr. Jackson's probation based upon the remaining violations of his probation, we affirm the revocation of Mr. Jackson's probation but remand with instructions that the orders violating probation be corrected consistent with this opinion.
Affirmed; remanded with instructions.
KHOUZAM, C.J., and LUCAS and BADALAMENTI, JJ., Concur.