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holding that it was necessary to remand the order revoking probation where it was unclear from the record that the trial court would have revoked the appellant's community control on sole remaining violation
Summary of this case from McDonald v. StateOpinion
No. 1D99-2369
Opinion filed August 14, 2000.
An appeal from the Circuit Court for Columbia County, Paul S. Bryan, Judge.
Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
Robert A. Butterworth, Attorney General, and Karla D. Ellis, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
This appeal arises from an order revoking Appellant's community control and imposing a prison sentence. Revocation based upon condition 9a was improper because the affidavits of violation of community control did not charge Appellant with violating this condition. See Brown v. State, 468 So.2d 439, 440-41 (Fla. 2d DCA 1985).
It is unclear from the record whether the trial court would have revoked Appellant's community control based solely upon Appellant's failure to remain confined to his approved residence on two separate occasions. Therefore, we reverse and remand for the trial court's consideration of the issue. See Whittington v. State, 688 So.2d 1035, 1036 (Fla. 1st DCA 1997) (citing Gavins v. State, 587 So.2d 487 (Fla. 1st DCA 1991)); Cobham v. State, 736 So.2d 67 (Fla. 4th DCA 1999) (citing Thompson v. State, 710 So.2d 80 (Fla. 4th DCA 1998)).
REVERSED and REMANDED.
BOOTH, MINER and VAN NORTWICK, JJ., CONCUR.