Clark v. State

• Court: Florida Supreme Court
• Writing for the Court: GRIMES; SHAW
• Citation: Clark v. State, 579 So.2d 109, 16 Fla. L. Weekly 282 (Fla. 1991)
• Decision Date: 02 May 1991
• Docket Number: No. 76006,76006
• Parties: Raymond Eugene CLARK, Petitioner, v. STATE of Florida, Respondent. 579 So.2d 109, 16 Fla. L. Week. 282

Page 109

579 So.2d 109

Raymond Eugene CLARK, Petitioner, v. STATE of Florida, Respondent.

No. 76006.

579 So.2d 109, 16 Fla. L. Week. 282

Supreme Court of Florida.

May 2, 1991.

James Marion Moorman, Public Defender and Stephen Krosschell, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen. and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for respondent.

GRIMES, Justice.

We review Clark v. State, 559 So.2d 1272 (Fla. 2d DCA 1990), for conflict with Holcombe v. State, 553 So.2d 1337 (Fla. 1st DCA 1989), and Ford v. State, 553 So.2d 1340 (Fla. 1st DCA 1989). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.

Clark pled nolo contendere to attempted arson and was placed on two years' community control with adjudication withheld. Two days later Clark signed a "Waiver of Rights and Motion to Modify Community Control," requesting the court to modify his community control to require him to enter and satisfactorily complete a program at the Lakeland Probation and Restitution Center (PRC). The waiver and motion form stated that the defendant waived the right to assistance of counsel and to a hearing on the modification. The court modified Clark's community control as requested without a hearing. Approximately two months later, Clark's community control officer filed an affidavit alleging that Clark violated his community control by terminating his residence at the PRC without permission and by failing to remain at the PRC as required. After a probation revocation hearing, the court found Clark in violation as alleged, revoked his community control, adjudicated him guilty of attempted arson, and sentenced him to three years' imprisonment.

On appeal, the district court rejected Clark's claim that the modification was illegal because the trial court added a more onerous condition to his community control without a hearing. The district court concluded that there is no requirement of a judicial proceeding where voluntary modification occurs before the filing of an affidavit pursuant to section 948.06, Florida Statutes (1987), alleging a violation of probation or community control. ¹

In Holcombe v. State, 553 So.2d 1337, Holcombe signed two "Acknowledgment and Waiver" forms while on probation, admitting that he had violated his probation on two occasions. By signing the forms, Holcombe waived his right to notice and hearing and agreed to modification of his probation. The trial court twice modified Holcombe's probation without a hearing, first to require him to obtain a mental health evaluation and treatment and later to require him to enter and complete a PRC program. Thereafter, the Department of Corrections filed an affidavit alleging that Holcombe violated the terms of his probation by leaving the PRC without permission. The court terminated his probation and sentenced him to eighteen months' imprisonment.

The district court of appeal reversed, accepting Holcombe's argument that the trial court erred in enhancing the conditions of his original probation without complying with section 948.06. The court relied on cases holding that a probationer cannot agree with his probation officer to an extension of probation in lieu of compliance with the procedures of section 948.06. Carter v. State, 516 So.2d 331 (Fla. 1st DCA 1987); Gurganus v. State, 391 So.2d 806 (Fla. 5th DCA 1980); Patrick v. State, 336 So.2d 1253 (Fla. 1st DCA 1976). ²

The trial court erred in this case by enhancing the terms of Clark's community control without notice and hearing. Section 948.06, Florida Statutes (1987), provides the sole means by which the court may place additional terms on a previously entered order of probation or community control. ³ Before probation or community control may be enhanced, either by extension of the period or by addition of terms, a violation of probation or community control must be formally charged and the probationer must be brought before the court and advised of the charge following the procedures of section 948.06. Absent proof of a violation, the court cannot change an order of probation or community control by enhancing the terms thereof, even if the defendant has agreed in writing with his probation officer to allow such a modification and has waived notice and hearing.

Accordingly, we quash the decision of the district court below. We remand for further proceedings consistent with this opinion and with instructions that the order of modified community control, the...