Jabare Edwards v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Nos. 1D17-1903
1D17-1904
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JABARE EDWARDS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
J. Layne Smith, Judge.
April 18, 2018
PER CURIAM.
In case number 1D17-1903, Appellant seeks review of his
criminal judgment and sentence for arson, and in case number
1D17-1904, he seeks review of the order revoking his probation
based on several new law violations, including arson. We
previously consolidated the cases for briefing and we now
consolidate them for disposition.
Appellant was charged with arson for setting fire to his ex-
girlfriend’s apartment. He was also charged with violating his
probation by committing several new law violations, including
arson. A jury found Appellant guilty of arson, and the trial court
found that he violated his probation. The trial court revoked
Appellant’s probation and sentenced him to concurrent prison
terms of varying lengths for the arson and the offenses for which
he was on probation.
We affirm Appellant’s judgment and sentence for arson
without further comment. We also summarily affirm the
revocation of Appellant’s probation, but for the reasons that
follow, we remand for entry of a corrected revocation order.
The charging affidavit alleged that Appellant violated his
probation by committing arson and three specific new law
violations in Gadsden County: reckless driving, failure to obey
law enforcement officer, and dealing in stolen property. The trial
court, in its oral pronouncement, found that Appellant violated
his probation by committing arson and two different new law
violations in Gadsden County: felony fleeing and eluding and
grand theft motor vehicle. Although Appellant admitted to
having been found guilty of “a new law offense” in Gadsden
County and he did not object to the introduction of the certified
copy of the judgment reflecting his convictions for felony fleeing
and eluding and grand theft motor vehicle, this court has held
that it is a violation of due process and fundamental error to
revoke a defendant’s probation based on grounds not alleged in
the charging affidavit. See Osteen v. State, 147 So. 3d 678, 679
(Fla. 1st DCA 2014); Bonner v. State, 138 So. 3d 1101, 1102 (Fla.
1st DCA 2014); Perkins v. State, 842 So. 2d 275, 277 (Fla. 1st
DCA 2003); N.L. v. State, 825 So. 2d 509, 510 (Fla. 1st DCA
2002). However, in this case, the error does not require reversal
because the record clearly establishes that the trial court would
have revoked Appellant’s probation based solely on the new law
violation of arson. See Bourne v. State, 869 So. 2d 606, 607 (Fla.
1st DCA 2004) (affirming probation revocation that was based in
part on uncharged grounds because “there are sufficient valid
grounds remaining upon which the trial court could have revoked
[the defendant’s] probation”); see also Lee v. State, 67 So. 3d 1199,
1201 (Fla. 2d DCA 2011) (“When a trial court relies on both
proper and improper grounds for revocation but it is clear from
the record that the trial court would have revoked probation even
without the existence of improper grounds, this court and others
have affirmed the revocation of probation and remanded for entry
of a corrected revocation order.”).
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Accordingly, we affirm the revocation of Appellant’s
probation, but remand for entry of a corrected revocation order
reflecting that the revocation was based solely on the new law
violation of arson. This disposition renders moot Appellant’s
argument that the written revocation order did not comport with
the trial court’s oral pronouncement.
Judgment and Sentence AFFIRMED; Probation Revocation
Order AFFIRMED and REMANDED with directions.
WOLF, ROBERTS, and WETHERELL, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Kathryn Lane, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.
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