EDWARD ROCKY GARDNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1978-12-27
No. 77-2155
DAUKSCH and MOORE, JJ., concur.
365 So. 2d 1053 Florida District Court of Appeal, Fourth District (1978) Positive Treatment
Cited by 24 cases

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Holding

A condition of probation must be sufficiently definite to advise the defendant of the limits of the restriction, and the evidence must show a willful violation.


Headnotes

[1] A condition of probation must be sufficiently definite to advise the defendant of the limits of the restriction.

[2] A condition of probation that is so vague that a defendant cannot reasonably know what lawful acts are prohibited is invalid.

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Facts & Procedural History

Defendant was found to be in violation of probation for failing to return to Missouri and for possessing a firearm. The original probation order was m…

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Opinion of the Court
BERANEK, Judge.

BERANEK, Judge.

Defendant was initially placed on three years’ probation following a plea of guilty to the crime of aggravated assault. Defendant was subsequently found to be in violation of probation and sentenced to five years in prison. This appeal questions the validity of the violation of probation. We reverse.

The original order placing defendant on probation required as a condition of probation that he spend six months in the county jail. In addition, the standard conditions of probation were imposed plus certain other special conditions. Most all of the conditions contemplated definite supervision by a probation officer. Two weeks after the original order the trial court entered an order modifying probation. This order released the defendant from jail and placed him in the custody of his mother. The order stated that probation was to be unsupervised. The order also stated that the defendant had indicated that he wished to return to the State of Missouri and not remain in Florida.

The original order of probation was entered March 15, 1977, and the modification order was entered on March 29, 1977. Defendant was charged within a single affidavit of violating the modified order in not returning to Missouri and with being in possession of a firearm in violation of a condition imposed in the initial order. After hearing, the trial court found defendant to be in violation of his probation because he had not gone to Missouri and because he was in possession of a .22 caliber rifle.

A condition of probation must be sufficiently definite to advise the defendant of the limits of the restriction. Almond v. State, 350 So. 2d 810 (Fla. 4th DCA 1977). A condition which is so vague that the defendant cannot reasonably know what lawful acts he is prohibited from doing is invalid. A person on probation is still entitled to some but not all of the traditional rights of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Here, the condition regarding defendant’s return to Missouri was at best vague and ambiguous. There was no definite order that he move his residence in any specific time frame. Further, the transcript of evidence before the trial court shows that the defendant in fact loaded his family into his station wagon and left for Missouri shortly after the order was entered. After he had traveled a short distance, his car sustained a brake failure and he called a friend who came and towed the car home. Defendant then attempted to repair the car but was unsuccessful before being arrested for failing to leave Florida. All of the evidence overwhelmingly showed that the defendant was making reasonable efforts to reach Missouri. Defendant had been released from jail on April 1, 1977, and he was arrested for still being in Florida on April 15, 1977. He was still trying to repair his car when arrested. We reverse the trial court’s finding in this regard because the condition of probation was not sufficiently definite to advise the defendant that he had to return to Missouri under pain of violation. Furthermore, assuming the condition valid, the evidence did not show that he failed to comply with it willfully.

Defendant was also found to be in violation of his probation because he was in possession of a firearm. This finding suffers from the same defects. The two probation orders resulted in an impermissibly vague set of conditions with respect to firearms. The initial order contained the following:

“(3) You will neither' possess, carry or own any weapon or firearm without first securing the consent of your probation supervisor. “(10) You will not own, use or have in your possession any weapons.”

The order modifying probation placed defendant in the custody of his mother and released him entirely from official supervision. The second order invalidated most of the standard conditions contained in the first order since most conditions were dependent upon participation of a probation officer. Here the defendant could not have known which conditions lapsed. In addition, the evidence presented is once again legally insufficient to find defendant in violation of probation for possession of a firearm even if a valid condition continued to exist.

The conviction below is reversed and the defendant is to be discharged from prison and restored to the status of probation under appropriate conditions to be imposed by the trial court upon remand.

REVERSED AND REMANDED.

DAUKSCH and MOORE, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (12 total)

  • VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)
    …1980) (no willful violation of condition requiring personal delivery of a report when timely completed report was not delivered because of probationer’s lack of transportation and subsequent incarceration for an unrelated offense); Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978) (no willful violation of condition that probationer leave Florida proven because his car broke down). A “trial court has broad discretion to determine whether a term of probation has been violated.... ” Harris v. State, 610 So.…
  • Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)
    …ntact with his stepchildren. However, on appeal, the Second District held that where a probationer makes reasonable efforts to comply with probation conditions, his failure to do so will not be considered willful. Id. at 41. Accord Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978) (where a probationer makes reasonable efforts to comply with his probation conditions, his failure to do so is not willful). Accordingly, the court in Scott concluded that the state did not establish that Scott had willfully vio…
  • Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)
    …n, the violation must be willful as well as substantial. Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978). Where a defendant makes reasonable efforts to comply with probation conditions, his failure to do so may not be willful. Gardner v. State, 365 So. 2d 1053 (Fla. 4th DCA 1978). As will be seen, slightly more than one week later, the matter of delivery of the report was out of appellant’s hands. Condition (3) of the standard probation order prohibits a change of residence or a move out of the county of…

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