Kane v. State

473 So. 2d 786 (1985)

Jay Miles KANE, Appellant,
v.
STATE of Florida, Appellee.

No. AY-16.

District Court of Appeal of Florida, First District.

August 7, 1985.

Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Gregory G. Costas, Asst. Atty. Gen., for appellee.

WENTWORTH, Judge.

Appellant seeks review of an order by which his probation was revoked and he was adjudged guilty and sentenced to a term of incarceration for a ciminal mischief offense. The revocation proceeding was initiated by a timely filed affidavit alleging that appellant violated his probation by failing to pay costs mandated in the probation order. Expressing some concern as to whether appellant had pursued a diligent work effort, the court further found that appellant had the ability to make the required payments and had violated his probation by failing to do so. However, the court also found that appellant had violated various other conditions of his probation as alleged in an amended affidavit filed after the expiration of the probationary term. As indicated in Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981), the court should not have considered the new charges which were not embraced within the timely affidavit, and the findings relating thereto are hereby stricken from the revocation order. But since the court indicated that it was primarily concerned with appellant's failure to pay the mandated costs, and it appears that appellant's probation would have been revoked for this violation alone, the improper findings do not require reversal of the revocation order. See Sparks v. State, 453 So. 2d 539 (Fla. 2d DCA 1984). Therefore, as amended, we hereby affirm the order appealed.

SHIVERS and NIMMONS, JJ., concur.