Florida District Courts of Appeal, 1979

Hicks v. State

Florida District Courts of Appeal · Decided February 21, 1979 · Downey, Letts, Moore

367 So. 2d 726; 1979 Fla. App. LEXIS 14117 (Southern Reporter, Second Series)

Opinion of the Court

LETTS, Judge.

In a violation of probation proceeding the required affidavit setting forth the violation named only one count. Apparently not noticing this clerical oversight, the Judge revoked the probation as to a second count for an identical offense. The Public Defender appeals this latter revocation.1 We reverse in part.

We are tempted to label this harmless error, but as the State itself admits in its brief:

This fact arguably would not excuse the State for apparently not following a necessary procedure. Certainly, this Court should affirm the sentence as to Count I and ... a vacation of the sentence as to Count II should be done without prejudice so that the State may properly file a new affidavit.

So be it. The sentence as to Count II is hereby set aside without prejudice to the State to properly re-file its affidavit as to Count II.

REVERSED IN PART IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.

. Note: the State does not appeal the substance of the revocation proceedings as to probation violation.

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