MCELWAIN v. STATE (2020)

In this Anders appeal, Jeffery Hudson McElwain challenges the trial court's revocation of his probation because the probation order refers to an affidavit of violation of probation that is not in the record. We reverse for the reasons discussed below.

In November 2018, the trial court issued a violation of probation warrant, which led to a no-contest plea by Appellant. The trial court proceeded to revoke Appellant's probation, adjudicate him guilty, and sentence him to seven concurrent terms of 10 years in prison with jail and prison credit. The order revoking probation stated, “The Defendant has not properly conducted himself and violated the conditions of Probation in a material respect by I. (5), II. (5), III. (5), IV. (SC 24) as cited in the Affidavit November 29, 2018.” This timely appeal followed.

Despite the trial court's reference to an affidavit in the order revoking probation, the record does not reflect that a violation of probation affidavit was filed in the circuit court. The record provided to this court did not include the affidavit. And after Appellant moved to have the record supplemented with a copy of the affidavit, the clerk of the circuit court responded by certifying that an affidavit of violation of probation was not found in the circuit court's record. This court issued an order under State v. Causey, 503 So. 2d 321 (Fla. 1987), for the parties to address the issue of the missing affidavit. In response, the State conceded that this case had to be reversed and remanded for the trial court to determine if the requisite violation of probation affidavit was filed. See § 948.06(1)(g), Fla. Stat. (2018). “A trial court fundamentally errs by revoking probation on grounds not alleged in the violation of probation affidavit.” McCloud v. State, 249 So. 3d 739, 741 (Fla. 1st DCA 2018) (citing Perkins v. State, 842 So. 2d 275, 277 (Fla. 1st DCA 2003)).

We, therefore, reverse and remand for further proceedings. On remand, the lower court should determine whether an affidavit of violation of probation has been filed. See Jean-Gilles v. State, 921 So. 2d 860, 862 (Fla. 4th DCA 2006) (reversing and remanding for the trial court to determine whether an affidavit was ever filed, noting that it was possible that the affidavit was misfiled). If the affidavit was filed, the trial court may reissue an order revoking Appellant's probation if the affidavit supports revocation. If an affidavit was not filed, reversal is without prejudice to the State's ability to file a timely and appropriate affidavit.

Reversed and Remanded for further proceedings.

Per Curiam.

Roberts, Osterhaus, and M.K. Thomas, JJ., concur.