Russo v. State, 91-2545
| Decision Date | 17 August 1992 |
| Docket Number | No. 91-2545,91-2545 |
| Citation | 603 So.2d 1353 |
| Parties | Joseph M. RUSSO, Appellant, v. STATE of Florida, Appellee. 603 So.2d 1353, 17 Fla. L. Week. D1933 |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Joseph M. Russo, seeks review of an order revoking his community control. The questions for our determination are the propriety of the modification of the conditions of community control without a violation, and the addition of a new condition to the original community control order without a hearing. We reverse.
Appellant pled nolo contendere to two offenses, and was placed on community control for a period of one year, to be followed by probation for one year. The community control and probation orders both contained the following condition: "The court retains jurisdiction to place you in the Probation and Restitution Center upon recommendation of your Probation/Community Control Officer without the finding of Violation of Probation/Community Control." This provision appears as condition sixteen of the community control order, and as condition nine of the probation order.
Five months later, an order was issued modifying the original community control order in the following manner:
By addition of special condition (23) which states, "the aforesaid shall reside at the Probation and Restitution Center until successfully terminated."
Subsequently, an affidavit of violation of community control was filed. The affidavit alleged that appellant violated condition three of his community control by leaving his approved place of residence at the Pensacola Probation and Restitution Center without prior knowledge or consent of his community control officer, and violated condition twenty-three (the special added condition) by failing to complete the program at the probation and restitution center as ordered by the court.
At the violation of community control proceeding, appellant's counsel argued the modification of community control without a hearing was illegal, thus there were no grounds for violation of community control. The trial court disagreed, finding that condition sixteen of the community control order permitted the court to add condition twenty-three. Appellant pled nolo contendere, reserving the right to appeal the propriety of the added condition of community control. The trial court adjudicated appellant guilty of violation of community control, revoked community control, and imposed a county jail sentence of eleven months and fifteen days.
Section 948.03, Florida Statutes (1989) outlines the terms and conditions of probation or community control. Subsection (8), applicable to the issues in this case, provides in pertinent part:
(8) The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper. The court may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer or offender in community control....
The provision has been construed to permit the trial court to add, at the time of the original sentencing, conditions of probation or community control other than those enumerated in the statute. Any subsequent modification must be limited to a term or condition previously imposed. For example, in Clark v. State, 579 So.2d 109 (Fla.1991), the court considered the effect of a waiver signed by the defendant which stated that the defendant waived his right to assistance of counsel and to a hearing on any modification of his community control. In Clark, as in the instant case, the modification required Clark to enter a probation and restitution center. Subsequently, an affidavit of violation of community control was filed, alleging that Clark violated his community control by terminating his residence at the center without permission, and by failing to remain at the center as required. After a hearing, the trial court revoked probation, adjudicated guilt, and imposed sentence. The supreme court held:
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. Before probation or community control may be enhanced, either by extension of...
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Jordan v. State, 91-3609
...imposed by it upon the probationer." (Emphasis added.) See Clark v. State, 579 So.2d 109, 110 n. 3 (Fla.1991); Russo v. State, 603 So.2d 1353, 1354 (Fla. 1st DCA 1992). Probation may be revoked only when a probationer violates a condition imposed by the court, not a probation officer. Page ......
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Perez v. State, No. 2D02-4801
...of probation. See Clark v. State, 579 So.2d 109 (Fla.1991); Weidmann v. State, 582 So.2d 1251 (Fla. 2d DCA 1991); Russo v. State, 603 So.2d 1353 (Fla. 1st DCA 1992). However, in order for the trial court to modify the terms and conditions of probation by extending the probationary period, t......
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Wanner v. State, 98-02112.
...anger management but did err in adding condition of no contact with victim in absence of violation of probation); Russo v. State, 603 So.2d 1353 (Fla. 1st DCA 1992) (new condition of community control cannot be added absent violation of community control). The mere modification of the resti......
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Blue v. State, 96-4937
...605 So.2d 456 (Fla.1992); Clark v. State, 579 So.2d 109 (Fla.1991); Dennis v. State, 630 So.2d 605 (Fla. 1st DCA 1993); Russo v. State, 603 So.2d 1353 (Fla. 1st DCA 1992). The order of modification entered on May 3, 1996, is VACATED. The order of revocation of probation entered on November ......