Fitzhugh v. State, 96-995

Citation698 So.2d 571
Decision Date22 July 1997
Docket NumberNo. 96-995,96-995
Parties22 Fla. L. Weekly D1826 Robert George FITZHUGH, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Page 571

698 So.2d 571
22 Fla. L. Weekly D1826
Robert George FITZHUGH, Appellant,
v.
STATE of Florida, Appellee.
No. 96-995.
District Court of Appeal of Florida,
First District.
July 22, 1997.
Rehearing Denied Sept. 2, 1997.

Page 572

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Amelia L. Beisner, Assistant Attorney General, Tallahassee, for Appellee.

MICKLE, Judge.

This cause is before us on appeal from appellant's judgment and sentence after violation of probation. We affirm the revocation of probation and the sentence entered thereon, and remand only for entry of a written order of revocation.

Appellant was charged with one count of sexual battery. He entered a plea of no contest in return for a sentence of three years in prison followed by five years of probation. Some two years later, following appellant's release from prison, the state filed an affidavit alleging numerous technical violations of probation. Thereafter, the state filed an amended affidavit of violation of probation, adding an allegation that appellant had been arrested and charged with several burglaries. At the violation of probation hearing, the state introduced the testimony of a correctional probation supervisor with regard to the technical violations. The state then rested, without producing evidence of the new substantive offenses. After hearing argument from counsel regarding the sufficiency of the state's evidence to demonstrate the technical violations, and after conducting a short side-bar conference, the lower court indicated on the record that it thought the state had presented sufficient proof to establish the technical violations, but that, in an abundance of caution, it wished to hear evidence regarding the new substantive offenses. Over the objection of defense counsel, the state's case was reopened and John Trejo was called to testify that he had recently pled guilty to four burglaries that he and appellant had committed together. Trejo then proceeded to detail the facts surrounding each burglary. The state again rested its case and the court ruled orally that the state had met its burden of proof to demonstrate both the technical violations as well as the new substantive offense. Probation was revoked and appellant was sentenced to seventeen years in prison.

As his first issue on appeal, appellant asserts that the trial court erred in sua...

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14 cases
  • Tasker v. State
    • United States
    • Florida Supreme Court
    • 10 Noviembre 2010
    ...case authority, appellant has not preserved the issue of the assessment of victim injury points. As we explained in Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), "an appeal from resentencing following violation of probation is not the proper time to assert an error in the origi......
  • Ishmael v. State, 1D00-2634.
    • United States
    • Florida District Court of Appeals
    • 15 Enero 2002
    ...assertion that he was twice put in jeopardy when the prosecution was permitted to reopen its claim is meritless. See Fitzhugh v. State, 698 So.2d 571 (Fla. 1st DCA 1997). No abuse of discretion has been shown. See K.K. v. State, 717 So.2d 193 (Fla. 5th DCA 1998). We also find no merit in Is......
  • Lyles v. State, 98-03772.
    • United States
    • Florida District Court of Appeals
    • 15 Septiembre 1999
    ...the deficiency in the state's case." Burton, 596 So.2d at 735. In contrast, we note that the First District held in Fitzhugh v. State, 698 So.2d 571 (Fla. 1st DCA 1997), that allowing the State to reopen its case is not an abuse of discretion if the trial judge has not announced his ruling.......
  • Routenburg v. State
    • United States
    • Florida District Court of Appeals
    • 26 Octubre 2001
    ...nothing in the record evidenced any physical injury to the victim, but the trial court denied the claim, citing Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), which held that "an appeal from resentencing following violation of probation is not the proper time to assert an error ......
  • Request a trial to view additional results
1 books & journal articles
  • Appellate standards of review.
    • United States
    • Florida Bar Journal Vol. 73 No. 11, December - December 1999
    • 1 Diciembre 1999
    ...(1983); Pitts v. State, 185 So. 2d 164 (Fla. 1966); Musselwhite v. Charboneau, 709 So. 2d 199 (Fla. 5th DCA 1998); Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA Allowing Jury to Rehear Testimony. The abuse of discretion standard has been applied to review decisions allowing the jury to re......

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