WILLIE JAMES WATKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1979-01-31
No. 78-1473
GRIMES, C. J., and RYDER, J., concur.
368 So. 2d 363 Florida District Court of Appeal, Second District (1979) Caution
Cited by 26 cases

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Holding

The court held that while probation cannot be revoked solely for non-payment of fees without proof of ability to pay, other violations, such as failing to obtain permission for a change of residence and failing to report to a probation officer, can support revocation.


Headnotes

[1] Probation cannot be revoked solely for violation of a condition requiring payment without evidence that the probationer was able to make the payment.

[2] A probationer's failure to obtain consent to a change of residence may be a violation even if the probationer was facing eviction, if the probationer neither requested co…

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Facts & Procedural History

Appellant's probation was revoked for violating conditions including non-payment of fees, changing residence without permission, and failing to report…

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Opinion of the Court
BOARDMAN, Judge.

BOARDMAN, Judge.

Appellant contends that the trial court erred in revoking his probation. We do not agree, and we affirm.

A jury found appellant guilty of burglary and resisting arrest without violence, and the sentencing court placed appellant on probation for a period of three years. Thereafter appellant was charged with violating three conditions of his probation. Following a hearing the trial court entered an order of revocation of probation finding that appellant had violated conditions of the order of probation by not paying the monthly supervisory fee, by failing to obtain permission before a change of residence, and by failing to comply with all instructions given him by the probation officer in that he did not report to the probation officer when requested to do so. The trial court sentenced appellant to two concurrent one-year terms in the county jail with credit for all time served.

At the hearing on these charges the probation officer read the alleged violations into the record. Counsel for appellant admitted the violations and sought to have appellant explain the circumstances. Appellant testified that he had not paid the fees because he was unemployed and thus unable to obtain the necessary funds. Appellant admitted changing his residence in May but said his landlord instructed him to leave because of delinquent rent. Although the probation officer instructed appellant to report in person during the first week in June, appellant said he was detained in transporting his ill grandmother and did not appear. Appellant did report to the probation officer in July and gave his new address at that time.

The trial court found that appellant was able to make the supervisory payments, but we find no evidence in the record to support that conclusion. Appellant rightfully contends that probation cannot be revoked solely for violation of a condition requiring payment without evidence that the probationer was able to make the payment. Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So. 2d 1158 (Fla. 1st DCA 1978). If there were no other grounds for revocation of probation we would reverse.

Appellant contends that obtaining consent to a change of residence would have been a useless act because he was virtually evicted from his approved residence for nonpayment of rent. Appellant relies on the decision of our sister court that held eviction by legal process to be a defense to violation of a similar condition. Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977). It may very well be that eviction would constitute a defense to failure to obtain consent if consent were denied, but appellant neither requested consent to change his residence nor notified the probation officer of the alleged eviction. Additionally, the probation officer did not know of appellant’s whereabouts for over a month and then only when the next monthly report was submitted. Under these circumstances we hold that the trial court’s finding that appellant violated this condition was proper and supported by the evidence.

Appellant argues that his failure to report in June was only an isolated incident and as such was not a sufficient ground to revoke his probation. We do not agree. The record shows that appellant failed to report for over a month after his failure to appear in June and consequently was unavailable to the probation officer during that period of time. It is well settled that probation may be revoked upon satisfaction of the conscience of the court. Bernhardt v. State, 288 So. 2d 490 (Fla.1974).

We note that the order by the probation officer to report in June was not a court-imposed condition of probation but was made by the probation' officer pursuant to the court-imposed condition which provides:

You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer,' and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.

This condition of probation is clear and unambiguous, and the probationer’s compliance with its provisions is required. We are aware of the holding in Barber v. State, 344 So. 2d 913 (Fla. 3d DCA 1977), that violation of orders given by the probation officer will not support revocation of probation. We believe that application of this result to the instant case would be contrary to the intent of probation. See Bernhardt v. State, supra. To deny the probation officer authority over the probationer would not only ren der such supervision ineffective, but would cause additional and unwarranted judicial labor in utilizing and reviewing probation. The probationer is protected from inconsequential directions by the statutory mandate that probation be revoked only for material violations. § 948.06(1), Fla.Stat. (1977). We see no need to require the probation officer to appear before the court for sanction of valid supervisory directions. We also point out that the condition in question is specifically authorized by Section 948.03(l)(c), Florida Statutes (1977).

Probation is dependent on legislative and judicial grace. Baker v. State, 319 So. 2d 628 (Fla. 1st DCA 1975). The burdens of compliance with conditions are slight in comparison to the alternative imprisonment.

The trial court is directed to strike the finding that appellant violated his probation by failing to pay the supervisory fee. Appellant need not be present for this purpose. Otherwise the order of revocation of probation, judgment, and sentence is affirmed.

AFFIRMED as modified and REMANDED for the purpose set out in this opinion.

GRIMES, C. J., and RYDER, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (13 total)

  • Odom v. State, 15 So. 3d 672 (Fla. 1st DCA 2009)
    …clearly is set forth in the written condition. Holterhaus v. State, 417 So. 2d 291, 292 (Fla. 2d DCA 1982) (stating that specific court approval is not necessary for “normal supervisory directions” given by the probation officer); Watkins v. State, 368 So. 2d 363, 365-66 (Fla. 2d DCA 1979) (concluding that a court-approved probation condition, which is substantially like Condition (8), clearly and unambiguously required Watkins ' to report pursuant to a schedule devised by the probation officer to facilitate…
  • Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)
    …pervisor’s consent would have been a useless act. Kotowski v. State, 344 So. 2d 602 (Fla. 3d DCA 1977). The State contends, however, that appellant nevertheless had a duty to advise the super [*756] visor of his whereabouts, citing Watkins v. State, 368 So. 2d 363 (Fla. 2d DCA 1979). The facts of this case, however, are distinguishable from Watkins in that here, there is unrefuted evidence that the probation supervisor had been present at appellant’s arraignment in federal court and had been advised by appell…
  • Holterhaus v. State, 417 So. 2d 291 (Fla. 2d DCA 1982)
    …structions given by the officer. Barber v. State, 344 So. 2d 913 (Fla. 3d DCA 1977), established that probation may only be revoked for violation of a condition which is imposed by the court, rather than by a probation officer. In Watkins v. State, 368 So. 2d 363 (Fla. 2d DCA 1979), this court found that application of Barber would be contrary to the intent of probation because the nature of the probation officer’s instruction — a routine direction to file monthly reports — was dispositive. In a situation wh…

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