5D04-3226 Erick Smith v.State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3226

Case Date: 01/02/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

ERICK D. SMITH, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 6, 2006 Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge. James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D04-3226

SHARP, W., J. Smith appeals from an order that revoked his probation after he violated the terms of his probation by committing a criminal narcotics offense. His principal point on appeal is that the affidavit of probation filed by his probation officer and approved by her supervisor was not executed before a person authorized to administer an oath attesting

to the truth of the facts supporting the allegations. Under the circumstances of this case, we affirm. The document alleging violation of probation was signed below the following statement: Under penalties of perjury, I have read the foregoing affidavit and the facts stated in it are true. This document was "verified," 1 but did not meet the "affidavit" requirement of section 948.06(1), Florida Statutes. Jackson v. State, 881 So. 2d 666 (Fla. 5th DCA 2004), modified by Crain v. State, 30 Fla. L. Weekly D2607 (Fla. 5th DCA Nov. 18, 2005). However, unlike Jackson , in this case the error was not preserved. The

evidentiary proceeding unfolded without any objection to the charging document and Smith's violation of probation was clearly established by sworn testimony. We have held that this is not fundamental error. Smartmays v. State, 901 So. 2d 278 (Fla. 5th DCA 2005). See also Ruiz v. State, 30 Fla. L. Weekly D1531 (Fla. 5th DCA June 17, 2005). AFFIRMED.

SAWAYA and TORPY, JJ., concur.

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