ERIC TYRONE SHAW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1980-12-24
No. 79-368
DAUKSCH, C. J., and COBB, J., concur.
391 So. 2d 754 Florida District Court of Appeal, Fifth District (1980) Negative Treatment
Cited by 45 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Eric Shaw appealed a probation violation finding where he was found guilty on three charges and his probation was extended. The Florida District Court of Appeal reversed, finding insufficient evidence to support the violations because the charges were either involuntary or made without ability to comply.


Holding

The court reversed the probation violation finding on all counts. The failure to deliver the report was not willful because Shaw made reasonable efforts and lacked transportation; the failure to report the change of address was involuntary and court-ordered, and the probation supervisor had been advised of the federal sentence; and the failure to pay was unsupported because there was no evidence Shaw had the ability to make the payments.


Headnotes

[1] A probation violation must be willful and substantial to support revocation.

[2] A probationer's failure to comply with a condition may not be willful if reasonable efforts to comply were made.

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Key Quotes

“To support a revocation of probation, the violation must be willful as well as substantial.”

Establishes the legal standard requiring both willfulness and substantiality for probation violations

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Facts & Procedural History

Shaw was on probation and faced three charges: (1) failure to submit a required report by June 5, 1979, though he completed it but lacked transportati…

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Opinion of the Court
ORFINGER, Judge.

ORFINGER, Judge.

Following a hearing on charges of violation of probation, appellant was found guilty and his probation was extended. He contends that the evidence was insufficient to support the charges. We agree and reverse.

The charges can be summarized as follows:

(a)failure to submit report due June 5, 1979;

(b) failure to make payments toward cost of supervision or payments toward fee of court appointed attorney;

(c) failure to report a change of address which took place on June 14, 1979, with his present whereabouts unknown to the probation officer. Only two witnesses testified at the hearing, appellant and his probation supervisor. With respect to the delinquent report due June 5, 1979, the probation supervisor had directed appellant to personally deliver the report to the probation office in Ocoee. Appellant lived in Orlando. It is undisputed that appellant completed the report in time because his probation supervisor saw the completed report on appellant’s dresser when he went to look for him about a week later. His testimony that he had no transportation, thus could not deliver the report was also not disputed. To support a revocation of probation, 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 a defendant’s residence without first procuring the consent of the probation supervisor. On June 13, 1979, appellant was sentenced by the federal court in Orlando to a six-month prison term for an offense committed prior to the crime for which he was placed on probation here. He reported to the Orange County Jail on June 15th and was held there until transferred to a federal prison on June 29, 1979. Since the “change of residence” under these circumstances was involuntary and by virtue of a court order, seeking his probation supervisor’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 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 appellant’s attorney that appellant faced a potential six — month prison term. Thus the failure to specifically advise his supervisor of his whereabouts does not appear to be a willful or substantial attempt to violate his probation.

On the charges of failure to pay, the only testimony in the record is that appellant received one check for $38.00 from employment with a CETA program, that other money which he had earned in that program had not been paid to him and that he never had the money to make the payments. Thus, there is no evidence at all to show that appellant had the ability to make the delinquent payments, and evidence of such ability to essential to support a revocation of probation for failure to make required payments. Holt v. State, 385 So. 2d 1133 (Fla. 5th DCA 1980), Coxon v. State, 365 So. 2d 1067 (Fla. 2d DCA 1979). The burden is upon the State to show that the probationer was able to make such payments as may have been required by the judgment. Holt, at 1134.

The order finding that appellant violated conditions 1, 2, 3, 8 and 10 of his probation order is reversed, and the case is remanded with directions to restore appellant to his original term of probation.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (22 total)

  • VAN Wagner v. State, 677 So. 2d 314 (Fla. 1st DCA 1996)
    …violation of probationary term requiring attendance); Jacobsen v. State, 536 So. 2d 373 (Fla. 2d DCA 1988) (defendant’s failure to leave county by a specified time not grounds for revocation when he made reasonable efforts to comply); Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 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); Gar…
  • Stevens v. State, 599 So. 2d 254 (Fla. 3d DCA 1992)
    …l violation of condition that defendant leave the county by a specific time when he made reasonable efforts to comply by purchasing a bus ticket, but was unable to depart because he was hospitalized for injuries received when robbed); Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980) (no willful violation of condition that defendant personally deliver a report when, although the report was timely completed, it was not delivered due to defendant’s lack of transportation and subsequent incarceration for an unre…
  • Drayton v. State, 490 So. 2d 229 (Fla. 2d DCA 1986)
    …as in custody between January 2 and January 5. There was, therefore, no evidence from which the trial court could properly conclude that appellant had the ability to file the monthly report but willfully failed to do so. See Davidson; Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980). The trial court also erred in finding appellant guilty of violating condition (2) by failing to pay costs of supervision. Both in his affidavit alleging the violation and in his testimony, the probation officer stated he did no…

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