DONALD FREDERICK ROYAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed probation revocation based on driving with suspended license but reversed the county-departure violation finding due to insufficient evidence of lack of permission, remanding for reconsideration of whether the single violation alone justified revocation.
Probation revocation based on leaving the county without permission must be reversed when the State presents no evidence refuting the probationer's testimony that permission was granted.
[1] A probation officer's tacit or express permission to violate a stated probation condition negates a finding of willful violation of that condition.
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Join FLexlaw to unlock all legal intelligence“the State did not present evidence to refute Royal's testimony that he did have permission to leave the county”
Explaining why the finding of violation of condition four must be reversed
Donald Frederick Royal's probation was revoked by the trial court based on findings that he violated two conditions: condition four by leaving his cou…
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STRINGER, Judge.
Donald Frederick Royal seeks review of the trial court’s order revoking his probation and his resulting judgment and sentence. The court revoked Royal’s probation based on its findings that Royal willfully and substantially violated conditions four and eight of his probation. We affirm the finding that Royal violated condition eight by committing the new law violation of driving with a suspended license, and we decline to comment further on the issue. We reverse the finding that Royal violated condition four of his probation by leaving his county of residence without permission because the State did not present evidence to refute Royal’s testimony that he did have permission to leave the county. See Hicks v. State, 890 So. 2d 459, 462 (Fla. 2d DCA 2004) (holding that defendant did not willfully violate his probation by operating a kiosk in a mall because his probation officer gave him tacit permission to do so); McCarty v. State, 978 So. 2d 249, 249 (Fla. 5th DCA 2008) (holding that defendant’s discharge from one branch of a drug treatment program was not a willful violation of probation because his probation officer had authorized the defendant to report to another branch). Because we are unable to determine whether the trial court would have revoked Royal’s probation based solely on the evidence of the new law violation, we reverse and remand for reconsideration. See Gary v. State, 987 So. 2d 180, 182 (Fla. 2d DCA 2008).
Affirmed in part, reversed in part, and remanded.
FULMER and VILLANTI, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gary v. State, 987 So. 2d 180 (Fla. 2d DCA 2008)
- Hicks v. State, 890 So. 2d 459 (Fla. 2d DCA 2004)
- Goolde v. State, 978 So. 2d 249 (Fla. 5th DCA 2008)