Hernandez v. State Of Fla.

Decision Date07 May 2010
Docket NumberNo. 2D08-5033.,2D08-5033.
PartiesOrlando HERNANDEZ, Appellant,v.STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

33 So.3d 143

Orlando HERNANDEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 2D08-5033.

District Court of Appeal of Florida,
Second District.

May 7, 2010.


33 So.3d 143
James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
33 So.3d 144
Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Orlando Hernandez appeals from the revocation of his probation and resulting sentences for burglary of a structure and grand theft. Because the trial court found that Hernandez violated his probation based solely on his arrest for a new offense, we reverse the revocation order and resulting sentences and remand for further proceedings.

Hernandez was on thirty-six months' probation for burglary of a dwelling and grand theft. Condition five of his probation required that he “live and remain at liberty without violating the law.” At his revocation hearing, Hernandez admitted to violating condition five by being arrested on July 23, 2008, for an armed robbery that occurred on April 16, 2008. Defense counsel specified that Hernandez was admitting the arrest but “not admitting to any facts or circumstances of that Condition Five violation.”

The State requested that the trial court consider testimony regarding the seriousness of the armed robbery charge for purposes of sentencing on the revocation. The defense contended that none of the facts of the armed robbery should be considered in sentencing on the revocation because Hernandez had not admitted guilt or been convicted on the new offense. The trial court stated, “Well, if he admits to being arrested and to a Condition Five, he's not admitting guilt to the offense; to the substantive of offense [sic]. I can still take testimony concerning sentencing.”

After hearing testimony, the trial court accepted Hernandez's admission to being arrested, revoked his probation, and imposed concurrent sentences of forty-two months in prison. The written order reflects that the court found a violation of condition 5 based on Hernandez's admission as to his arrest. Hernandez correctly contends that we must reverse because his arrest cannot be the sole basis for the revocation of his probation.

“The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense or offenses.” Robinson v. State, 907 So.2d 1284,...

To continue reading

Request your trial
4 cases
  • Nieves v. State, Case No. 2D18-613
    • United States
    • Court of Appeal of Florida (US)
    • 2 Agosto 2019
    ...question is whether a preponderance of the evidence establishes that the probationer committed any alleged offense. Hernandez v. State, 33 So. 3d 143, 144 (Fla. 2d DCA 2010).2 277 So.3d 748 Whether the evidence in this case established the lawful execution of a legal duty—a necessary elemen......
  • Person v. State
    • United States
    • Court of Appeal of Florida (US)
    • 14 Marzo 2012
    ...a mere arrest is obviously insufficient to establish a violation. See Hines v. State, 358 So.2d 183, 185 (Fla.1978); Hernandez v. State, 33 So.3d 143 (Fla. 2d DCA 2010); Sharpston v. State, 895 So.2d 1225 (Fla. 2d DCA 2005). 2. The claimed violation by Person's failure to attend a substance......
  • Cerny v. State , 2D09–5338.
    • United States
    • Court of Appeal of Florida (US)
    • 22 Julio 2011
    ...State, 937 So.2d 746, 748–49 (Fla. 4th DCA 2006), provided that Mr. Cerny's probationary terms have not expired, see Hernandez v. State, 33 So.3d 143, 145 (Fla. 2d DCA 2010); Humbert v. State, 933 So.2d 726, 728 (Fla. 2d DCA 2006); Sharpston v. State, 895 So.2d 1225, 1226 (Fla. 2d DCA 2005)......
  • Brown v. State
    • United States
    • Court of Appeal of Florida (US)
    • 29 Julio 2020
    ...allegations. The arrest report and Appellant's testimony, without more, are insufficient to prove the violations. See Hernandez v. State, 33 So. 3d 143, 144 (Fla. 2d DCA 2010). While Appellant's testimony corroborated the time and place of the arrest, Appellant denied the basis for the arre......
1 books & journal articles
  • Judgment and sentence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 Abril 2021
    ...without evidence that he in fact committed a robbery. An arrest is not evidence that defendant committed the crime. Hernandez v. State, 33 So. 3d 143 (Fla. 2d DCA 2010) Defendant was charged with violating probation and was reinstated. He was then arrested again for committing new crimes wh......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT