Ivey v. State, 74--856
| Decision Date | 26 February 1975 |
| Docket Number | No. 74--856,74--856 |
| Citation | 308 So.2d 565 |
| Parties | Warren A. IVEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, Harold H. Moore, Asst. Public Defender, and Steven H. Denman, Legal Intern, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
This is an appeal from an order of the lower court revoking the appellant's probation.
The appellant, Warren Ivey, pled guilty to breaking and entering with intent to commit a felony. The court withheld adjudication of guilt and imposition of sentence and placed the appellant on probation for a period of two years with the usual general conditions of probation supplemented by a special condition that the appellant spend the first six months of his probation in the county jail. After spending the required time in jail, the appellant was released but while still on probation he was arrested and charged with possession of heroin and possession of narcotic paraphernalia. On June 18, 1974, shortly after being charged with the narcotics offenses, an affidavit of violation of probation was issued. After a hearing where appellant was represented by private counsel, the court found the appellant violated the terms of his probation and on July 15, 1974, entered an order of revocation of probation. At the same time the court adjudged the appellant guilty of the prior charge of breaking and entering with intent to commit a felony and sentenced him to prison for three years with credit for time served in the county jail after being charged with the new offenses.
By this appeal the appellant raises three points:
(1) The evidence was insufficient to justify the court's findings that appellant had violated the conditions of his probation.
(2) The probation revocation is void because it was entered pursuant to a jail sentence followed by probation and is thereby contrary to F.S. § 948.01(4).
(3) The trial court erred in denying appellant credit for the six months period he spent in the county jail as one of the conditions of his probation.
While some of the appellant's objections to the evidence received by the trial court may have merit in the context of a criminal trial, E.g., the requirement for proof of the corpus delicti prior to receipt of evidence of the appellant's admissions; nevertheless a revocation hearing is not required to follow the strict rules of evidence which would prevail at an adversary criminal trial, and as long as the court is satisfied from the greater weight of evidence as to any material facts that are contested that a substantial violation of the conditions of probation has occurred then the court is justified in revoking the probation. ...
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