PATRICK HUDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed a probation revocation and 15-year sentence imposed on Hudson for violating a condition not to contact crime victims' relatives. The court found insufficient evidence to demonstrate Hudson willfully placed a telephone call to a victim's grandmother, given that the call could have been placed by his mother or dialed by mistake.
The court reversed the revocation order, holding that the state failed to meet its burden of proving Hudson willfully violated his probation because the evidence did not demonstrate that Hudson placed the call in question.
[1] A defendant's probation may not be revoked without proof that the defendant willfully violated the terms of probation.
[2] Evidence of a telephone call placed from a defendant's residence to a victim's relative's residence is insufficient to prove a willful violation of probation when the cal…
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Join FLexlaw to unlock all legal intelligence“In achieving the revocation of a defendant's probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation.”
Establishes the legal standard and burden of proof required for probation revocation
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Join FLexlaw to unlock all legal intelligenceHudson was on probation with a condition prohibiting contact with victims' relatives. A telephone trace showed a call from his parents' home to the gr…
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CAMPBELL, Judge.
Appellant seeks review of the trial court’s order revoking his probation and sentencing him to fifteen years imprisonment. We reverse upon a finding that the evidence is insufficient to demonstrate that appellant willfully violated his probation.
Appellant was charged with violating the instruction of his probation officer that he not telephone or communicate with the relatives of the victims of the crime for which appellant was initially convicted. One of the victims was the former girlfriend of appellant. During appellant’s revocation hearing, the state introduced evidence that a telephone trace had been placed on the telephone in appellant’s parents' home, with whom he lived, and on the home telephone of Mrs. Thompson, the grandmother of a victim. The trace revealed only that a telephone call had been placed from appellant’s parents’ home to the Thompson home at 5:45 a.m. The trace did not indicate the length of the call or the voice of the person who placed the call.
Mrs. Thompson, who answered the telephone call in question, testified that the caller hung up the telephone immediately after it was answered. Hence, she was unable to detect a voice or comment that would have enabled her to identify the caller. Appellant’s mother and father also testified. Appellant’s father stated that he could not have placed the call because he was at work when the call was made. Appellant’s mother, however, testified that she may have inadvertently placed the call because the Thompson number was listed in her home directory directly below the name of appellant’s sister. She admitted to having made such errors in the past. Appellant also testified that he may have mistakenly dialed Mrs. Thompson’s telephone number because he regularly telephoned his current girlfriend in the early morning hours.
In achieving the revocation of a defendant’s probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation. Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980); Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978). The facts underlying the immediate proceeding, however, fail to support a finding that the state satisfied its burden of proof. The record does not demonstrate that appellant placed the call to the Thompson residence.
Accordingly, the order finding that appellant violated his probation is reversed, and the case is remanded with directions to restore appellant to his original term of probation.
RYDER, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Steiner v. State, 604 So. 2d 1265 (Fla. 4th DCA 1992)…. 2d DCA 1988) (state failed to establish that probationer willfully violated the terms of his probation by not leaving the county when he was ordered to, where probationer made a good faith effort to comply with the condition). In Hudson v. State, 425 So. 2d 1166, 1167 (Fla. 2d DCA 1983), the Second District Court of Appeal held that it is incumbent upon the state to establish that a probationer willfully violated his probation. In Hudson, one of the probationer’s conditions was not to telephone or communica…
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Scott v. State, 485 So. 2d 40 (Fla. 2d DCA 1986)…ant, along with his fiancee and her two children, left the park. In achieving the revocation of a defendant’s probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation. Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983). 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). Certainly, the prohibition against appellant having…
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Howard v. State, 484 So. 2d 1232 (Fla. 1986)…SHAW, Justice. We review Howard v. State, 473 So. 2d 716 (Fla. 4th DCA 1985), based on direct and express conflict with Hudson v. State, 425 So. 2d 1166 (Fla. 2d DCA 1983). Our jurisdiction is based on article V, section 3(b)(3) of the Florida Constitution. Petitioner was placed on five years’ probation for strong-arm robbery and six months’ concurrent probation for simple assault. He was assigned…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chatman v. State, 365 So. 2d 789 (Fla. 4th DCA 1978)
- Shaw v. State, 391 So. 2d 754 (Fla. 5th DCA 1980)