FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4672

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CURTIS WAYNE HODGES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Nassau County.

Robert M. Foster, Judge.

December 27, 2018

PER CURIAM.

In this appeal from his resentencing following the revocation 

of probation, Appellant raises three claims: (1) the trial court erred 

in denying his motion to dismiss for lack of jurisdiction because his 

probation had expired; (2) the trial court committed reversible 

error in finding that he violated his probation by leaving his county 

of residence and changing his approved residence without his 

probation officer’s consent; and (3) the trial court erred in not 

specifying the conditions violated in the revocation order. For the 

reasons that follow, we affirm in part, reverse in part, and remand 

for further proceedings.
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I.

Appellant moved unsuccessfully to dismiss for lack of 

jurisdiction because his probation expired, asserting that the filing 

of an affidavit and issuance of an arrest warrant for technical 

violations of probation did not toll the probationary period. In 

doing so, he relied on Mobley v. State, 197 So. 3d 572 (Fla. 4th DCA 

2016), in which the Fourth District explained:

Section 948.06(1)(f) is clear that a warrant under section 

901.02 is required in order for the probationary period to 

be tolled (except when one of the other two alternatives 

are applicable, as is not the case here). Section 901.02 in 

turn requires that the warrant be for a “crime.” Here, the 

warrants issued were for violations of probation based on 

the failure to make restitution payments and a payment 

for drug testing. These are not “crimes.” The warrants 

were therefore not issued under section 901.02, and 

Appellant’s probation was never tolled.

Id. at 574. However, in Williams v. State, 202 So. 3d 917 (Fla. 4th 

DCA 2016), the Fourth District held that when a defendant 

absconds from probation, an exception to its holding in Mobley is 

triggered, and the probationary period is tolled until the defendant 

is once more placed under probationary supervision. 

 More recently, the Second District explained that “our 

common law recognizes that a probationer’s absconsion from

supervision during his probationary term, apart from section 

948.06(1)(f)’s tolling provision, automatically tolls his term.” 

Canchola v. State, 43 Fla. L. Weekly D2092, D2093 (Fla. 2d DCA 

Sept. 7, 2018). The trial court denied Appellant’s motion to dismiss 

on the ground that Appellant had been charged with absconding 

from supervision, which tolled the running of Appellant’s 

probation.

At the probation violation hearing, Appellant’s probation 

officer testified that Appellant’s mother came to his office and

informed him that Appellant had not been home in a week. 

Appellant’s mother acknowledged at the hearing that Appellant 

had not been at her home for a week and that she did not know his 

whereabouts at that time. Thus, there was competent, substantial 
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evidence that Appellant had absconded for at least a week during 

his probationary term. If tolled for the week that he had 

absconded, Appellant’s probation would have expired on June 16, 

2017. It appears undisputed that Appellant was arrested on June 

15, 2017, for criminal charges in Duval County pursuant to a 

warrant under section 901.02. Because Appellant was arrested on 

this warrant before his probation expired, his probation was tolled 

by operation of section 948.06(1)(f).* Therefore, the trial court 

properly denied Appellant’s motion to dismiss.

II.

The trial court found that Appellant violated his probation by 

leaving Nassau County, his county of residence, without the 

consent of his probation officer. The affidavit alleged that 

Appellant violated this condition when he left Nassau County and 

entered Duval County on March 8, 2017. 

However, no evidence was presented that Appellant was in 

Duval County on March 8, 2017. The revocation of probation based 

on conduct not alleged in the affidavit constituted fundamental 

error and did not require a contemporaneous objection to preserve 

the claim for appellate review. Perkins v. State, 842 So. 2d 275, 277 

(Fla. 1st DCA 2003). Therefore, the trial court erred in finding that 

Appellant violated his probation by leaving his county of residence 

without his probation officer’s consent based on acts not charged 

in the violation of probation affidavit. See T.T. v. State, 82 So. 3d 

1019 (Fla. 4th DCA 2011) (reversing the trial court’s finding that 

T.T. violated his probation where the affidavit alleged that he 

violated probation by skipping school or being tardy on specific 

dates, but no evidence was presented that he violated his probation 

on those dates); Cherington v. State, 24 So. 3d 658, 660-61 (Fla. 2d 

DCA 2009) (holding that the trial court erred in finding a violation 

of probation where Cherington admitted to possessing and using 

cocaine on some undetermined date rather than on the date 

 *Effective July 1, 2017, the legislature amended section 

948.06(1)(f) to remove the requirement that the warrant be issued 

under section 901.02. Ch. 2017-115, §§ 9, 20, Laws of Fla. This 

amendment is not applicable here since Appellant’s probation 

expired before July 1, 2017.
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specified in the affidavit of violation); Perkins, 842 So. 2d at 277 

(holding that the trial court’s finding that Perkins violated his 

probation by absconding during the months of May through 

November constituted fundamental error where the affidavit did 

not allege that he had absconded during those months); Johnson 

v. State, 811 So. 2d 749 (Fla. 2d DCA 2002) (holding that the trial 

court could not find that Johnson violated his community control 

by being absent from his approved residence on April 11, 2000, 

where the affidavit alleged that Johnson failed to remain confined 

to his approved residence on March 31, 2000).

The trial court further found that Appellant violated his 

probation by changing his residence without the consent of his 

probation officer. Appellant’s probation officer testified that he 

filed this charge based solely on what Appellant’s mother told him 

during a meeting at his office. Such hearsay alone is not sufficient 

to establish that Appellant changed his residence in the absence of 

nonhearsay evidence to corroborate it. See Rutland v. State, 166 

So. 3d 878 (Fla. 1st DCA 2015); Webb v. State, 154 So. 3d 1186, 

1188 (Fla. 4th DCA 2015); Cito v. State, 721 So. 2d 1192 (Fla. 2d 

DCA 1998). Although Appellant’s mother testified at the probation 

violation hearing, she denied that Appellant had changed his 

residence. At most, she conceded that Appellant had been absent 

from the residence for a week and that she did not know his 

whereabouts at that time. 

A probationer’s absence from an approved residence for a brief 

time during which the probationer’s location was unknown would 

not support a finding that the probationer violated a condition of 

probation by changing his residence without first procuring the 

consent of his probation officer. Tobias v. State, 641 So. 2d 194 (Fla. 

4th DCA 1994); accord Gauthier v. State, 949 So. 2d 326, 326-27 

(Fla. 5th DCA 2007); Johnson v. State, 668 So. 2d 240, 241 (Fla. 

1st DCA 1996). Therefore, the trial court erred in finding that 

Appellant violated his probation by changing his residence without 

his probation officer’s consent. 

However, Appellant was also charged with violating his 

probation by committing new law violations in Duval County, 

which would support the revocation of his probation, if proven. The 

trial court’s oral findings focused on the allegations that Appellant 
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violated his probation by leaving his county of residence and 

changing his approved residence without his probation officer’s 

consent, but the prosecutor was able to coax what appears to be a 

further oral finding that Appellant violated his probation by 

committing the new law violations in Duval County as an 

accessory. 

Given the somewhat ambiguous nature of the trial court’s oral 

findings and the lack of any written findings, we reverse and 

remand with directions that the trial court make an express 

determination whether Appellant’s probation should be revoked 

based on the new law violations. See Manis v. State, 30 So. 3d 586 

(Fla. 5th DCA 2010).

III.

The trial court’s written order of revocation does not specify 

the conditions of probation that were violated by Appellant. “If a 

trial court revokes a defendant’s probation, the court is required to 

render a written order noting the specific conditions of probation 

that were violated.” King v. State, 46 So. 3d 1171, 1172 (Fla. 4th 

DCA 2010). The State properly concedes that this case must be 

remanded for entry of a written order specifying the conditions of 

probation violated by Appellant. See Davis v. State, 218 So. 3d 507 

(Fla. 1st DCA 2017); Leggs v. State, 27 So. 3d 155 (Fla. 1st DCA 

2010).

AFFIRMED in part, REVERSED in part, and REMANDED for 

further proceedings.

MAKAR, OSTERHAUS, and JAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public 

Defender, Tallahassee, for Appellant.
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Pamela Jo Bondi, Attorney General, and Frank Xavier Moehrle, 

Jr., Assistant Attorney General, for Appellee.