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Gilliam v. State

District Court of Appeal of Florida, Fourth District
Dec 19, 2001
801 So. 2d 996 (Fla. Dist. Ct. App. 2001)

Opinion

CASE NO. 4D99-4358

Opinion filed December 19, 2001

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 91-2233 CF 92-411 CF.

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Kristine Keaton, Assistant Attorney General, Fort Lauderdale, for appellee.


This excessively convoluted violation of probation (VOP) appeal is exacerbated by conflicting orders as to the precise violations of probation found. Because a recitation of all issues, facts and controlling legal principles would add nothing to Florida law, we simply state our conclusions without elaboration.

The first order of violation finds guilt on four charges of VOP; the second order, entered 18 days after the first, instead finds six violations. We conclude that the entry of the second order was legal error; for we treat the first order as the essential finding of guilt and that order could not be amended to tack on additional findings of guilt without doing harm to the Double Jeopardy Clauses. Moreover two violations are based on an amended affidavit of VOP that was never filed. The elementary principles of double jeopardy and due process cannot be avoided simply by adding nunc pro tunc to an order attempting to change a prior adjudication that has become final. Law Latin is not an escape hatch from constitutional principles.

We therefore affirm only the battery and introduction of contraband offenses as the basis for the VOP. Because we are unable to discern whether the trial judge would have imposed the same sentence under these circumstances, we remand for resentencing.

GUNTHER and KLEIN, JJ., concur.


Summaries of

Gilliam v. State

District Court of Appeal of Florida, Fourth District
Dec 19, 2001
801 So. 2d 996 (Fla. Dist. Ct. App. 2001)
Case details for

Gilliam v. State

Case Details

Full title:ROLLIE GILLIAM, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Dec 19, 2001

Citations

801 So. 2d 996 (Fla. Dist. Ct. App. 2001)

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