Background
Christopher David Smith appealed an order revoking his sex-offender probation and imposing a 20-year prison sentence. The State alleged that Smith violated probation by having unsupervised contact with a minor and by using intoxicants to excess.
At a violation-of-probation hearing, Smith admitted the unsupervised-contact violation. The State expressly declined to proceed on the intoxicants allegation, and the trial court said it would not consider that allegation at sentencing. Months later, however, the court mistakenly believed Smith had admitted both violations, revoked probation, and imposed the prison sentence.
The Court’s Holding
The Sixth District reversed the revocation order and sentence. It held that the trial court fundamentally erred by considering the intoxicants allegation even though Smith had neither admitted it nor had the State proved it, and even though the State had declined to pursue it.
The error was not harmless. Although the admitted unsupervised-contact violation could potentially support revocation and the same sentence, the record did not clearly establish that the trial court would have revoked probation and imposed 20 years based solely on that valid violation.
Key Takeaways
- A court commits fundamental error when it revokes probation partly on a violation that was not admitted or proved.
- It is also fundamental error to rely on a violation the State expressly chose not to pursue.
- When valid and invalid grounds were considered, remand is required unless the record clearly shows the same revocation and sentence would have resulted from the valid ground alone.
Why It Matters
The decision reinforces that probation revocation must rest on violations actually admitted or established by proof. A defendant’s failure to object does not preserve a revocation founded in part on an unproven or abandoned allegation.
On remand, the circuit court must hold a new hearing and decide, based only on Smith’s admitted unsupervised contact with a minor, whether to revoke probation and what sentence to impose. It may consider matters otherwise permitted or required by law, but not the intoxicants allegation.