No Violation Of Probation If New Crime Alleged Is Not Proven
The defendant was placed on probation. The State alleged that the defendant violation his probation by committing a new law violation, loitering and prowling. After a violation of probation hearing the trial court found the defendant in violation for committing the new law violation of loitering and prowling and sentenced the defendant. The defendant appealed the trial court’s finding of a violation of probation.
At the violation of probation hearing the State only introduced evidence from the electronic monitoring device that the defendant was wearing that the defendant had been in or near a neighbors yard. According to section 856.021, Florida Statute (2014) it is loitering and prowling and therefore it is unlawful for “any person to loiter or prowl in a place, at a time or in a manner not usual for law abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity”. Since the State failed to prove the crime of loitering and prowling at the violation of probation hearing it was unlawful for the trial court to find the defendant violated probation.
See Acevedo v. State, 200 So.3d 196 (Fla. 5th DCA 2016)