State ex rel. Roberts v. Cochran, 31249

• Decision Date: 24 January 1962
• Docket Number: No. 31249,31249
• Citation: 140 So.2d 597
• Parties: STATE ex rel. Lewis ROBERTS, on behalf of Charles Ronnie Roberts, Petitioner, v. H. G. COCHRAN, Jr., Director, Division of Corrections, Respondent.
• Court: Florida Supreme Court

Page 597

140 So.2d 597

STATE ex rel. Lewis ROBERTS, on behalf of Charles Ronnie Roberts, Petitioner, v. H. G. COCHRAN, Jr., Director, Division of Corrections, Respondent.

No. 31249.

Supreme Court of Florida.

Jan. 24, 1962.

Rehearing Denied Feb. 22, 1962.

Sam E. Murrell & Sons, Orlando, for petitioner.

Richard W. Ervin, Atty. Gen., and Bruce R. Jacob, Asst. Atty. Gen., for respondent.

THORNAL, Justice.

By a petition for a writ of habeas corpus Lewis Roberts seeks release of his son Charles Ronnie Roberts who is incarcerated in the State prison.

The petition raises a question regarding the validity of an order revoking probation and sentencing Charles Roberts to a term in the Apalachee Correctional Institution, a branch of the State prison system.

Pursuant to a plea of guilty Charles Roberts, hereafter referred to as 'Roberts', was found guilty of the offense of breaking and entering with the intent to commit a misdemeanor, two charges of petit larceny and reckless driving. The Judge of the Criminal Court of Record of Orange County on November 27, 1957, suspended the imposition of sentence. He placed the accused on probation for a period of four years, subject to certain general conditions recorded elsewhere in the minutes of the Court. One of these conditions, so-called 'Condition H', required that the accused 'live and remain at liberty without violating any law.' No assault is here made on the original Orange County conviction.

On September 26, 1960, and again on February 20, 1961, pursuant to separate pleas of guilty, Roberts was convicted and sentenced by the Judge of the Criminal Court of Record of Polk County for two liquor law violations. Thereafter on March 15, 1961, pursuant to a warrant charging a violation of probation the Judge of the Criminal Court of Record of Orange County entered an order revoking the probation by finding that Roberts 'has not properly conducted himself, but has violated the conditions of his probation in a material respect by violating 'Condition H' of his order of probation in being convicted * * *' of the liquor law offenses in Polk County. The Judge of the Criminal Court of Orange County thereupon sentenced Roberts to a term of six months to three years for the offenses for which he had been convicted November 6, 1957, when he had been originally placed on probation. When the Orange County sentences were imposed, Roberts had completed serving the Polk County sentences.

As previously stated, no assault is made on the validity of the 1957 proceeding in Orange County. It is here contended, however, that when Roberts was tried, convicted, and sentenced in Polk County he was an unmarried minor and his parents were not notified of the accusation against him and the subsequent trial as required by Section 932.38, Florida Statutes, F.S.A. It is asserted that the Polk County convictions were, therefore, invalidly obtained, Giles v. Cochran (Fla.) 129 So.2d 426, and consequently could furnish no valid basis for the revocation of probation by the Judge of the Criminal Court of Orange County. The State does not dispute the fact that Roberts was an unmarried minor when he was convicted in Polk County. Further, it is not contended that his parents were notified as required by Section 932.38, supra. Therefore, if the validity of the Polk County judgment of conviction is an essential condition to the entry of the Orange County order revoking probation, then the latter order was improperly entered.

We have held that the validity of an order revoking probation may be tested in a habeas corpus proceeding. Jackson v. Mayo (Fla.) 73 So.2d 881; Senk v. Cochran (Fla.) 116 So.2d 244.

We must now determine whether a valid conviction is a condition precedent to the revocation of a probation order grounded upon a violation of so-called 'Condition H', which merely requires that the accused 'must live and remain at liberty without violating any law.'

Under Section 948.06 a Florida probationer is entitled to a notice and hearing in any proceeding for the revocation of the probation order. This requirement was met in the instant situation. The revocation hearing, however, is not required to assume the full proportions of a criminal trial. The authorities are in accord on the proposition that the revocation hearing may be informal. A trial by jury is not required, save perhaps in the isolated situation where the probationer places in issue his identity as the perpetrator of the act allegedly violative of the probation order. Moreover, unless specifically required in the probation order, formal conviction of a crime is not essential to enable the judge to revoke the order of probation. Brill v. State, 159 Fla. 682, 32 So.2d 607; Ex parte Anderson, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051; 15 Am.Jur., Criminal Law, Section 500, page 151.

Statutory provisions for extending probation privileges to those who have been found guilty of violations of the criminal laws are not mandatory upon the...