               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



THOMAS J. McCARRON,                           )
DOC #105068,                                  )
                                              )
              Appellant,                      )
                                              )
v.                                            )         Case No. 2D14-3097
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed February 10, 2016.

Appeal from the Circuit Court for Pasco
County; William R. Webb, Judge.

Howard L. Dimmig, II, Public Defender, and
Carol J. Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for Appellee.


WALLACE, Judge.

              Thomas J. McCarron challenges the revocation of his probation and his

sentence of thirty years in prison. Because the trial court revoked Mr. McCarron's

probation based in part on conduct not alleged in the affidavit of violation of probation,

we reverse the revocation of probation, the new judgment, and the resulting sentences.
                  I. THE UNDERLYING OFFENSES AND SENTENCES

              In November 2005, Mr. McCarron entered negotiated pleas of nolo

contendere to the following offenses: Count 1, attempted sexual battery by a person

over eighteen years of age upon a child less than twelve years of age, a violation of

sections 777.04(1) and 794.011(2)(a), Florida Statutes (1999), a first-degree felony;

Count 2, lewd or lascivious exhibition upon a person less than sixteen years of age, a

violation of section 800.04(7), Florida Statutes (1999), a second-degree felony; and

Count 3, lewd or lascivious molestation by a person over eighteen years of age on a

child less than twelve years of age, a violation of section 800.04(5)(a)-(b), a first-degree

felony.1 In accordance with the terms of the plea negotiations, the trial court sentenced

Mr. McCarron to serve ten years in prison, followed by ten years on sex offender

probation on each count.2 The sentences were designated to run concurrently. In

addition, Mr. McCarron was designated as a sexual predator.

               II. MR. McCARRON'S PERFORMANCE ON PROBATION

              On June 4, 2013, after serving his time in prison, Mr. McCarron began

serving the probationary portion of his sentences. At that time, Mr. McCarron was sixty-

six years old. Mr. McCarron was disabled and walked with a cane. One of the

conditions of Mr. McCarron's sex offender probation was that he participate in and

successfully complete a sex offender treatment program. Although Mr. McCarron had


              1
              The dates of the offenses as alleged in the amended information were
from June 15, 1999, to September 26, 1999.
              2
               With regard to the offense in Count 2, this was an illegal sentence. The
ten years' prison and ten years on probation exceeded the fifteen-year maximum for a
second-degree felony. See § 775.082(3)(c), Florida Statutes (1999); Fla. R. Crim. P.
3.704(d)(25); Cillo v. State, 913 So. 2d 1233, 1234 (Fla. 2d DCA 2005).



                                            -2-
entered such a program, he was later temporarily excused from attending the treatment

sessions because of his "numerous medical issues."

              Mr. McCarron had a "stable residence" situation at a motel on US

Highway 19 in Pinellas Park where a number of persons who had committed various

sexual offenses also lived. Mr. McCarron received $602 per month from Social

Security. He earned extra money by doing odd jobs when he was able for the motel's

owner. These odd jobs included cutting up cardboard boxes and taking them to a

dumpster.

              Mr. McCarron shared his room at the motel with one other man. Mr.

McCarron had decorated his portion of the room in an Oriental motif. The decorative

scheme featured two Samurai swords hung on the wall above the headboard attached

to Mr. McCarron's bed; pictures of cherry blossoms, Asian tigers, and dragons; and two

Asian fans.

              III. THE FACTUAL BASIS FOR THE ALLEGED VIOLATIONS

              On February 26, 2014, several probation officers, accompanied by several

officers from the Pinellas Park Police Department, conducted a "planned compliance

initiative" (PCI) at the motel where Mr. McCarron resided. "A planned compliance

initiative is a sweep in which [probation and parole] officers conduct unannounced visits

to offenders to ensure that they are in compliance with the conditions of their

supervision." Press Release, Florida Department of Corrections, Probation Officers

Partner with Fellow Law Enforcement Agencies to Keep Florida Safe (July 21, 2015),

http://www.dc.state.fl.us/secretary/press/2015/07-21-partnerships.html (last visited Nov.

13, 2015). During the course of this PCI, the officers encountered numerous




                                           -3-
probationers at the motel, including Mr. McCarron. A police officer or officers

encountered Mr. McCarron as he was walking back to his room from the motel

dumpsters. During a search of Mr. McCarron's person, one of the police officers found

a knife3 in Mr. McCarron's pants pocket. A probation officer also found the two Samurai

swords mounted on the wall above the headboard attached to Mr. McCarron's bed.

Finally, a probation officer found three knives located "in a little box" on the nightstand

next to Mr. McCarron's bed. The probation officer who found the three knives in the box

testified at the revocation hearing that Mr. McCarron had acknowledged that these three

knives belonged to him. At the completion of the execution of the PCI, Mr. McCarron

was arrested and jailed until the revocation hearing, which was conducted on June 16,

2014.

                   IV. THE ALLEGED VIOLATIONS OF PROBATION

              The day after Mr. McCarron's arrest, Dawn M. Holcomb, Mr. McCarron's

probation officer, filed an affidavit alleging that Mr. McCarron had violated the conditions

of his sex offender probation in two respects. First, Ms. Holcomb alleged that Mr.

McCarron had committed a new law violation. In her affidavit, she alleged:

                    Violation of Condition (8) of the Order of
              Probation, by possessing, carrying, or owning any weapon,
              without first procuring the consent of the probation officer

              3
                The State's witnesses described this knife as "a spring-loaded knife." Mr.
McCarron denied that the knife was a spring-loaded knife. He explained that the knife
had a nub on it that enabled him to open it with one hand. The trial court described the
knife as "a folding combat-style knife." Although the State introduced a photograph of
the knife into evidence at the revocation hearing, the photograph does not appear in our
record. However, the exact nature of the knife's operation is not critical to our analysis.
Defense counsel did not claim that the knife qualified as a "common pocketknife" and
thus did not qualify as a weapon. See § 790.001(13), Fla. Stat. (2013); Bunkley v.
State, 882 So. 2d 890, 894-96 (Fla. 2004); L.B. v. State, 700 So. 2d 370, 373 (Fla.
1997).



                                            -4-
              and as grounds for belief that the offender violated his sex
              offender probation, Officer Dawn M. Holcomb states that on
              2/26/2014 the offender did possess a spring loaded knife a
              law violation, as told to Officer Dawn M. Holcomb on
              2/27/2014, by probation officer Ryan Wilcox.4

Second, Ms. Holcomb alleged that Mr. McCarron had failed to follow the instructions

given to him. In this regard, she alleged:

                     Violation of Condition (10) of the Order of
              Probation, by failing to comply with all instructions given to
              him by the probation officer, and as grounds for belief that
              the offender violated his sex offender probation, Officer
              Dawn M. Holcomb states that on 6/5/2013, the offender was
              instructed that he could not posses[s] any firearms, weapons
              or explosive devices and the offender did fail to carry out this
              instruction by having in his pocket a spring loaded knife.

Notably, neither of these alleged violations included Mr. McCarron's possession of the

two Samurai swords or the three knives in the box on his nightstand.

                  V. THE PROBATION OFFICER'S RECOMMENDATION

              Despite filing the affidavit for violation of probation, Ms. Holcomb did not

propose sending Mr. McCarron back to prison. In her written report on the alleged

violations, Ms. Holcomb said:

              This is the offender's first violation since being placed on
              probation. Up until this point the offender has been
              compliant with all conditions of his probation, therefore this
              officer would recommend that the offender remain on
              supervision at this time.

              4
                We note that this allegation is insufficient because it fails to state with
specificity the law that Mr. McCarron was alleged to have violated. Hines v. State, 358
So. 2d 183, 185 (Fla. 1978); Burton v. State, 651 So. 2d 793, 794 (Fla. 1st DCA 1995).
Nevertheless, defense counsel did not challenge the sufficiency of the allegation. On
appeal, the State argues that the possession by Mr. McCarron—a convicted felon—of
the knife in his pants pocket constituted a violation of section 790.23(1)(a), Florida
Statutes (2013). However, the State did not make this argument in the trial court.
Furthermore, the trial court did not make a finding that Mr. McCarron had violated
section 790.23(1)(a).



                                             -5-
Ms. Holcomb assumed that on account of the alleged violations Mr. McCarron would be

required to submit to electronic monitoring in accordance with section 948.063(2),

Florida Statutes (2013). However, because Mr. McCarron's offenses were committed

before September 1, 2005, the imposition of an electronic monitoring requirement was

not mandatory but could be imposed at the discretion of the trial court. See Witchard v.

State, 68 So. 3d 407, 411 (Fla. 4th DCA 2011).

        VI. THE HEARING ON THE ALLEGED VIOLATIONS OF PROBATION

              In order to understand what happened at the revocation hearing, it will be

helpful to understand the participants' basic assumptions. Everyone involved—Mr.

McCarron's probation officer, defense counsel, the prosecutor, and the trial judge—

seems to have assumed that Mr. McCarron's mere possession of the knife in his pocket

and the other knives and the Samurai swords constituted a violation of the conditions of

his probation. This assumption was mistaken. However, the fact that this mistaken

belief guided the actions of all of the parties involved does much to explain the course of

the proceedings. With this preliminary understanding in mind, we proceed to the events

at the hearing.

              Ms. Holcomb, Mr. McCarron's probation officer, testified that she had

taken over the supervision of Mr. McCarron in July 2013. She reiterated that he had

been compliant with all of the conditions of his probation. In addition, Mr. McCarron had

been reporting as required and was testing negative for prohibited substances. With

regard to the two Samurai swords, Ms. Holcomb had seen them in Mr. McCarron's room

during a regular visit one week before the execution of the PCI. With admirable candor,

Ms. Holcomb testified that she did not immediately recognize the Samurai swords as a



                                           -6-
violation of the conditions of Mr. McCarron's probation. She added that she had

planned to tell Mr. McCarron to get rid of the swords but had not had an opportunity to

do so before the execution of the PCI and Mr. McCarron's arrest. Two other probation

officers5 testified to the details of the search of Mr. McCarron that revealed the knife in

his pants pocket and the search of his room that resulted in the recovery of the three

other knives and the two Samurai swords.

              The particulars of the violations of probation alleged in Ms. Holcomb's

affidavit were limited to the knife found in Mr. McCarron's pants pocket during a search

of his person at the motel. Mr. McCarron testified that he used this knife as a tool, not

as a weapon. Specifically, he used the knife to cut up boxes in connection with the odd

jobs that he performed for the motel owner. He also used this knife to cut up food for

his pets. Mr. McCarron explained that the knife's features were convenient to him

because they enabled him to open the knife with one hand while his other hand held the

cane that he used to support himself.

              Mr. McCarron's testimony at the hearing also addressed the additional

items that had not been mentioned in the affidavit for violation of probation. He said that

the Samurai swords attached to the wall above his bed were part of his Oriental

decorative motif. Mr. McCarron testified that he had the three knives found in the box

on his nightstand because he was sharpening them for a friend.




              5
                It is apparent from the record that neither of these probation officers were
present when Mr. McCarron was initially detained and searched. An officer or officers
employed by the Pinellas Park Police Department actually detained and searched Mr.
McCarron. None of the Pinellas Park police officers who participated in the execution of
the PCI testified at Mr. McCarron's revocation hearing.



                                            -7-
              At the conclusion of the hearing, the trial court made oral findings that Mr.

McCarron had violated conditions 8 and 10 of his probation as alleged in the affidavit.

The trial court based these findings not only on Mr. McCarron's possession of the knife

found in his pants pocket, but also on the two Samurai swords attached to the wall and

the three other knives located in the box on the nightstand. The trial court's oral ruling

was as follows:

                     I do find that the defendant was advised when he
              began on probation, he was instructed on 8/7/13. And he
              acknowledged that a condition of his probation is that he was
              not to possess or use any weapons, firearm[s], or knives.

                      That on 2/26/2014, he did, in fact have two Samurai-
              type steel swords hanging on the wall in his bedroom in his
              possession. They were sharpened blade steel swords, that
              that is in violation of his conditions of probation.

                      That he had a folding combat-style knife in his pocket.
              This is not a butter knife by any stretch of the imagination.
              This is a folding sharpened steel combat-style knife that's—
              while it might be capable of opening boxes, it's also fully
              capable of slitting people's throats.

                     And that he, likewise, had two [sic] more folding
              combat-style knives in his possession in a box on his
              nightstand.

                     I don't find the defendant's statements at all credible
              that he felt they were tools of the trade in terms of
              implements. These are dangerous looking, dangerous
              combat-style folding knives that are typically possessed for
              one and only one purpose, that is to inflict injury on people.

                      Clearly, clearly somebody on sex-offender probation
              is not to be in possession of these combat-style folding
              knives.

                     And I don't find his statement that he didn't realize
              they were prohibited by his conditions of probation at all
              credible. In fact, I find his statements incredible.




                                            -8-
                     I, therefore, find that he has willfully and substantially
              violated his probation as alleged in terms of violating
              Condition 8 and 10.

The trial court's findings of fact were limited to Mr. McCarron's possession of the knives

and the Samurai swords. The trial court did not find that Mr. McCarron's conduct

amounted to a concealed carry of the knife found in his pocket or that he had violated

section 790.23(1)(a).

              Defense counsel did not argue that the State had failed to prove a new

law violation. In addition, defense counsel did not argue that the State had failed to

prove that Mr. McCarron had violated the conditions of his probation. Undoubtedly

acting on the erroneous assumptions outlined above, defense counsel limited her

remarks to matters in mitigation.

              Unfortunately, the trial court did not enter a written order of revocation of

probation. Instead, the trial court signed a preprinted form titled "Plea/Disposition on

Violation of Probation/Community Control." This preprinted form erroneously recited

that Mr. McCarron had admitted the alleged violations of probation. Of course, this was

not accurate; Mr. McCarron contested the alleged violations. The so-called

"Plea/Disposition" form fails to set forth any findings concerning the alleged violations.6

              The trial court had adjudicated Mr. McCarron guilty of the offenses alleged

in all three counts of the amended information when he entered his nolo contendere

plea to the underlying charges in 2005. Nevertheless, after revoking Mr. McCarron's



              6
              The "Plea/Disposition" form is insufficient. The trial court was required to
enter a proper order of revocation of probation detailing the violations of probation found
by the court. See Cato v. State, 845 So. 2d 250, 251 (Fla. 2d DCA 2003); Donley v.
State, 557 So. 2d 943, 944-45 (Fla. 2d DCA 1990).



                                             -9-
probation, the trial court entered a second judgment finding Mr. McCarron guilty of the

offenses again.7 The trial court sentenced Mr. McCarron to serve a term of thirty years

in prison on Counts 1 and 3, with credit for all time previously served.8 The sentences

were designated to run concurrently.

              Because Mr. McCarron had already served ten years in prison, the

sentence imposed upon the revocation of his probation amounted to a twenty-year

sentence. According to the Department of Corrections website, Mr. McCarron's current

release date is March 25, 2035. If Mr. McCarron were to survive to serve that sentence

to completion, he would be almost eighty-eight years old upon his release from prison.

                  VII. MR. McCARRON'S APPELLATE ARGUMENTS

              On appeal, Mr. McCarron makes two arguments. First, he contends that

the knife found in his pants pocket during the execution of the PCI at the motel where

he resided had a legitimate use as a tool for his work. Because Mr. McCarron

reasonably believed that he could possess the knife for work purposes, the State did not

prove that he had willfully and substantially violated the conditions of his probation.

Second, Mr. McCarron argues that the trial court impermissibly relied on the two

Samurai swords and the three other knives—items not charged in the affidavit for

violation of probation—in reaching its decision to revoke his probation and to send him

back to prison for twenty years.


              7
               The entry of a duplicative judgment of conviction is impermissible for the
reasons that this court has previously detailed in Pierce v. State, 150 So. 3d 1207,
1208-09 (Fla. 2d DCA 2014).
              8
               Apparently because the sentence previously imposed on Count 2 was an
illegal sentence, the trial court did not impose any new sentence for the offense alleged
in that count.



                                           - 10 -
                                    VIII. DISCUSSION

A. The Willful and Substantial Violation Issue

              To be fair, defense counsel did say at one point that Mr. McCarron's

conduct did not amount to "a substantial violation." Unfortunately, she failed to

elaborate on this remark or to develop her point. Moreover, defense counsel made her

remark after the trial court had already ruled and as part of her argument for the

restoration of Mr. McCarron to supervision or for a lenient sentence. Read in context,

we do not view this isolated remark as preserving for appellate review the issue of

whether Mr. McCarron's conduct amounted to a substantial violation. "[A]n objection

must be sufficiently specific both to apprise the trial judge of the putative error and to

preserve the issue for intelligent review on appeal." Castor v. State, 365 So. 2d 701,

703 (Fla. 1978). Moreover, assuming that Mr. McCarron's conduct did violate the

conditions of his probation, it would be difficult to say that Mr. McCarron's undisputed

possession of four "combat-style" knives and two Samurai swords did not amount to a

substantial violation.9

B. The Issue of the Trial Court's Reliance on Matters Not Alleged

              In reaching its decision to revoke Mr. McCarron's probation and to send

him back to prison, the trial court did not rely only on his possession of the knife found in

his pants pocket. On the contrary, the trial court also specifically relied on his

possession of the two Samurai swords and on his possession of the three knives

located in the box on his nightstand. As previously noted, Mr. McCarron's possession of


              9
                 We do not address the issue of whether the evidence was sufficient for
the trial court to find that Mr. McCarron's possession of the knife in his pants pocket was
a violation of section 790.23(1)(a).



                                            - 11 -
these items was not alleged in the affidavit for violation of probation. Thus Mr.

McCarron had no notice that the State would seek to revoke his probation based on his

possession in his residence of five edged weapons not mentioned in the charging

document that formed the basis for the requested revocation of probation.

              "Among the minimal requirements of due process in a revocation

proceeding is written notice of the alleged violation." M.T. v. State, 805 So. 2d 898, 899

(Fla. 2d DCA 2001) (citing Burton v. State, 651 So. 2d 793 (Fla. 1st DCA 1995)). Here,

Mr. McCarron did not receive written notice of his alleged possession of five of the six

weapons that formed the basis upon which the trial court revoked his probation. The

procedure followed in the trial court deprived Mr. McCarron of his right to due process of

law and constituted error. See M.T., 805 So. 2d at 899; Burton, 651 So. 2d at 794-95;

Bishop v. State, 21 So. 3d 830, 832 (Fla. 1st DCA 2008); Kane v. State, 397 So. 2d

1169, 1169-70 (Fla. 3d DCA 1981).

              The trial court's decision to revoke Mr. McCarron's probation based on his

possession of these additional items was improper because of the lack of proper written

notice. This court has set forth the appropriate inquiry for appellate review of an order

revoking probation or community control under these circumstances as follows:

              When a trial court relies on both proper and improper
              grounds for revocation but it is clear from the record that the
              trial court would have revoked probation even without the
              existence of improper grounds, this court and others have
              affirmed the revocation of probation and remanded for the
              entry of a corrected revocation order. Only when this court
              cannot determine from the record whether the trial court
              would have revoked the defendant's probation based solely
              on the proper grounds will this court reverse and remand for
              reconsideration by the trial court.

Lee v. State, 67 So. 3d 1199, 1201-02 (Fla. 2d DCA 2011) (citations omitted).



                                           - 12 -
              Here, it was undisputed that at least until the execution of the PCI on

February 26, 2014, Mr. McCarron had been compliant with all of the terms of his

probation, and he had been reporting as required. He had a stable residence at the

motel in Pinellas Park that housed various other sex offenders. Mr. McCarron was

testing negative for the use of prohibited substances. Ms. Holcomb, Mr. McCarron's

probation officer, had observed the two Samurai swords in Mr. McCarron's room one

week before the execution of the PCI, and she never informed him that his possession

of these items was impermissible. Indeed, Ms. Holcomb's recommendation—which the

trial court declined to follow—was that Mr. McCarron remain on supervision. We also

note that Mr. McCarron, who was sixty-six years old at the time of the hearing, used a

cane to walk and suffered from "numerous medical issues." The undisputed evidence

established that he used the knife found in his pants pocket as a tool in connection with

the odd jobs that he performed for the motel owner to earn a little extra money to

supplement the meager income he received from Social Security. There was no

evidence that Mr. McCarron had used the knife to threaten or to injure anyone. Mr.

McCarron plausibly explained that the knife's features made it easy for him to open it

with one hand while he used his other hand to hold his cane. In light of these facts, we

cannot determine that the trial court would have revoked Mr. McCarron's probation and

imposed on him what probably amounted to a life sentence simply because he had a

knife in his pants pocket—one that he had never used to injure or threaten anyone—

while he was in the immediate vicinity of his approved residence. Accordingly, the

revocation of Mr. McCarron's probation must be reversed and the case remanded to the

circuit court for further proceedings.




                                          - 13 -
C. Some Guidance on Remand

              Because we are remanding this case to the trial court for further

proceedings, we will briefly address a few matters for the guidance of the parties and

the trial court. First, we address the question of the new law violation. Generally

speaking, and with certain exceptions, a person who carries a concealed weapon

commits a misdemeanor of the first degree. See § 790.01(1). However, a person may

carry a concealed firearm or weapon in or about the immediate vicinity of his or her

residence or place of business without violating the law. See § 790.25(3)(n); Peoples v.

State, 287 So. 2d 63, 66-67 (Fla. 1973); Santiago v. State, 77 So. 3d 874, 876-77 (Fla.

4th DCA 2012); Brook v. State, 999 So. 2d 1093, 1096-97 (Fla. 5th DCA 2009); Russ v.

State, 304 So. 2d 481, 481 (Fla. 1st DCA 1974). Mr. McCarron's possession of the

knife in his pants pocket in the immediate vicinity of his residence was arguably a

violation of section 790.23(1)(a)—if at all—only because he was a convicted felon. Cf.

Williams v. State, 48 So. 3d 192, 194-95 (Fla. 2d DCA 2010) (A box cutter is "a tool that

can be legally possessed and owned by a person, including a felon, for legitimate work

purposes. . . . [E]ven a felon can legally carry a box cutter in a concealed pocket if he is

carrying the box cutter for a legitimate work purpose and is not hiding it with the intent to

use it, if necessary, as a weapon.")

              Second, the parties and the trial court assumed that Mr. McCarron's

possession of the two Samurai swords and the three knives located in the box on his

nightstand was both a new law violation and a violation of the conditions of his

probation. Neither of these assumptions was accurate. Mr. McCarron's mere

possession of a sword or a knife in the privacy of his own residence was not a violation




                                           - 14 -
of the law. See § 790.25(3)(n) ("[I]t is lawful for the following persons to own, possess,

and lawfully use . . . weapons . . . for lawful purposes: A person possessing arms at his

or her home or place of business.").

              Third, none of the conditions of Mr. McCarron's probation prohibits him

from possessing a weapon. Only condition 5 comes close: "You will not possess, carry

or own any firearm." But neither a sword nor a knife is a firearm. The order of probation

simply does not prohibit the possession of knives in particular or weapons in general.

              Fourth, at the hearing, the State ignored the court-ordered conditions of

Mr. McCarron's probation and focused instead on a "standard form" called "instructions

to the offender" that Mr. McCarron was said to have signed in June 2013 at the

beginning of his probation.10 In this form, Mr. McCarron was purportedly warned that he

was not allowed "to possess, purchase, receive or transport firearm[s], weapons, or

explosives." (Emphasis added.) To the extent that the alleged "instruction" given to Mr.

McCarron by his probation officer in this form sought to prohibit him from possessing

weapons generally, it is inconsistent with the conditions set forth in the order placing

him on probation. "Probation may only be revoked for violation of a condition which is

imposed by the court, not the probation officer." Ramirez v. State, 4 So. 3d 752, 753

(Fla. 2d DCA 2009) (quoting Hutchinson v. State, 428 So. 2d 739, 740 (Fla. 2d DCA

1983)). "Thus, while a probation officer may give routine, supervisory instructions to a

'probationer, the probation officer cannot prescribe new conditions of probation.' " Id.

(quoting Hutchinson, 428 So. 2d at 740). Accordingly, the alleged instruction provided



              10
               The State did not offer either the original or a copy of this document into
evidence, and it is not in our record.



                                           - 15 -
by the form cannot constitute a basis for revoking Mr. McCarron's probation based on

his open possession of the two Samurai swords and the three knives in the box on the

nightstand in the privacy of his own residence. See Kiess v. State, 642 So. 2d 1141,

1142 (Fla. 1994); Ramirez, 4 So. 3d at 753; Bishop, 21 So. 3d at 832.

                                     IX. CONCLUSION

              The trial court's reliance on Mr. McCarron's possession of five weapons

that were not charged in the affidavit for violation of probation as a basis for the

revocation of his probation was error. Because we are unable to determine whether the

trial court would have revoked Mr. McCarron's probation and given him what amounted

to a life sentence based solely on his possession of a knife that he used in connection

with odd jobs that he performed around his residence and to cut up food for his pets—a

knife that he had never used to injure or threaten anyone—we reverse the order of

revocation of probation and the new judgment and sentences. We remand this case to

the trial court for further proceedings.

              Reversed and remanded.



KELLY, J., Concurs.
CRENSHAW, J., Concurs in result only.




                                            - 16 -
