Opinion
No. 78-1751.
April 18, 1979.
Appeal from the Circuit Court, St. Lucie County, Wallace Sample, J.
Brad Culverhouse of Culverhouse Van Natta, Fort Pierce, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal by defendant from a violation of probation proceeding. Defendant's probation was violated on the basis of an affidavit alleging violation of probation based upon possession of a weapon in paragraph 1 and trespass to real property in paragraph 2.
At the actual hearing the trial judge who knew the defendant personally due to his numerous appearances in court commented that the defendant's real problems were alcohol related. The defendant, his lawyer, and the Judge all agreed. The trial judge made reference to a report by the probation officer indicating that the defendant had been intoxicated during the incidents mentioned in the affidavit. Without taking evidence, the defendant was found to be in violation of his probation. It seems clear from the transcript of the violation hearing that the court was simply attempting to get at the true issue which was apparently the defendant's alcohol problem. However, the court may not revoke a defendant's probation on a ground not charged in the affidavit. King v. State, 349 So.2d 738 (Fla. 2d DCA 1977), and Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973). The conviction below is, therefore, reversed and the matter remanded for a hearing on the probation violation as alleged or as same may be amended.
REVERSED AND REMANDED.
DOWNEY, C.J., and LETTS, J., concur.