                                              IN THE DISTRICT COURT OF APPEAL
                                              FIRST DISTRICT, STATE OF FLORIDA

RUBEN DANYON MCCLOUD,                         NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
      Appellant,                              DISPOSITION THEREOF IF FILED

v.                                            CASE NO. 1D14-5664

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 2, 2016.

An appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant, and Ruben Danyon McCloud, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      This is a belated appeal challenging the trial court’s order revoking

Appellant’s probation and sentence of fifteen years in prison.     Because the

convictions on which the trial court based its order have been overturned, we

reverse and remand for further proceedings.
      On January 15, 2009, pursuant to a plea of no contest, Appellant was found

guilty of the offense of organized scheme to defraud. The trial judge sentenced

Appellant to a term of incarceration to be followed by probation.

      On April 7, 2010, the state filed an affidavit alleging Appellant committed

new offenses of attempted murder, shooting or throwing deadly missiles, and

possession of a firearm by a convicted felon, in violation of the condition of his

probation that required him to “live and remain at liberty without violating any

law.” At the ensuing revocation of probation hearing, the state’s sole evidence

consisted of a certified judgment and sentence showing Appellant had been tried

and convicted of the offenses alleged in the affidavit. The trial court revoked

Appellant’s probation and sentenced him to a term of fifteen years’ imprisonment.

      On October 9, 2014, approximately one year after the revocation hearing,

this court reversed the judgment and sentence that served as the basis of

Appellant’s revocation of probation and remanded the case for a new trial.

McCloud v. State, 150 So. 3d 822 (Fla. 1st DCA 2014).               Appellant was

subsequently granted this belated appeal. Appellant now argues that the trial

court’s order of revocation of probation and subsequent sentence should also be

reversed.

      A criminal conviction is clearly a sufficient basis to revoke probation.

Maselli v. State, 446 So. 2d 1079, 1080 (Fla. 1984). However, a conviction can

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serve as the basis of a revocation of probation only to the extent that the conviction

is valid.   If the sole basis of a revocation order is a conviction that is later

overturned, that order of revocation cannot stand. State ex rel Roberts v. Cochran,

140 So. 2d 597, 600 (Fla. 1962); Mattox v. State, 59 So. 3d 253, 253-54 (Fla. 1st

DCA 2011); Wendell v. State, 404 So. 2d 1167, 1169 (Fla. 1st DCA 1981);

Plummer v. State, 365 So. 2d 1102, 1104 (Fla. 1st DCA 1979).

      Here, the trial court’s order revoking Appellant’s probation was based

entirely on the convictions later overturned in McCloud. Accordingly, the order

revoking Appellant’s probation must be reversed and remanded for the trial court

to make an independent determination of whether Appellant violated probation.

See Cochran, 140 So. 2d at 600 (reversing and remanding with instructions for trial

judge to make “independent determination” of whether law was violated where

revocation of probation order was based on convictions later overturned); Wendell,

404 So. 2d at 1169 (same).

      The judgment and sentence is reversed and remanded for further

proceedings consistent with this opinion.

WOLF, BILBREY, and WINOKUR, JJ., CONCUR.




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