Hunt v. State, 96-748
| Decision Date | 26 December 1996 |
| Docket Number | No. 96-748,96-748 |
| Citation | 685 So.2d 964 |
| Parties | 22 Fla. L. Weekly D66 Robert HUNT, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Julie M. Levitt, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Keith S. Kromash, Assistant Attorney General, for appellee.
Before JORGENSON, GERSTEN, and GREEN, JJ.
Defendant appeals from a revocation of probation. For the following reasons, we reverse.
At the revocation hearing, the trial court expressed confusion over whether, rather than revoking probation that had been imposed in 1992, it could instead impose more severe probation terms. The court believed that the defendant was amenable to continued therapy and treatment. The court determined that it lacked such discretion, and revoked defendant's probation, urging defense counsel to seek review in this court.
Section 948.06(3), Florida Statutes (1991), provides that "[u]pon the probationer or offender being brought before it, the court which granted the probation or community control may revoke, modify, or continue the probation or community control." (Emphasis added.) The statute thus grants the trial court the discretion to modify the probationary sentence rather than revoke it.
Accordingly, we reverse and remand to allow the trial court to exercise its discretion and reconsider the revocation of probation in light of this opinion. 1
Reversed and remanded with directions.
Respectfully, I must disagree with the majority opinion to the extent that it suggests that a trial judge may effectively modify a probationary sentence after a violation and impose what effectively amounts to a downward departure sentence without providing valid written reasons therefor.
On May 19, 1992, Robert Hunt pled guilty to six counts of lewd assault. 1 In exchange for his plea, the State agreed to a five year probationary sentence with a special condition that Hunt successfully complete a Mentally Disordered Sexual Offender Treatment Program ("MDSO program"). On December 12, 1995, an affidavit of violation of probation was filed against Hunt. After a probation violation hearing was conducted, the court below determined that Hunt had indeed violated his probation by voluntarily withdrawing himself from the MDSO program. Although Hunt scored 9-22 years imprisonment on his guidelines scoresheet at that point, the court below indicated a desire to modify Hunt's five year probationary sentence to include the special condition that Hunt spend 364 days in the county jail to be followed by continued therapy upon his release. The trial court, however, concluded that it could not modify Hunt's probation, after a violation, to impose what essentially was a downward departure sentence without valid written reasons. Unable to articulate any reason for a downward departure, the trial court concluded that it was compelled to revoke Hunt's probation and sentence him to a...
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State v. Moore, 97-00896
...impose a downward departure sentence involving a short term in prison or jail followed by renewed probation. See, e.g., Hunt v. State, 685 So.2d 964 (Fla. 3d DCA 1996) (holding that upon finding defendant violated probation, trial court did not have to revoke probation and impose guidelines......
- State v. Hunt